Gray v. State

A.2d James Melvin GRAY Maryland. STATE Term, Sept. No. 2001. Maryland. Appeals

Court April 2002. E. Braudes, (Stephen Public Defender R. Asst.

Michael Gowen, Defender, Asst. Public Harris, and Anne E. Public Baltimore, Defender, brief), for Petitioner. on Jr., (J. Curran, Holcomb, Joseph Atty. Asst. Gen. E. Steven Baltimore, brief), Md., Respondent. on Atty. Gen. ELDRIDGE, RAKER, BELL, C.J., Argued before BATTAGLIA, CATHELL, JJ. WILNER, HARRELL and CATHELL, Judge. trial in the Circuit Gray, petitioner, after Melvin

James first-degree mur- convicted of County, was for Charles Court wife, Gray. Bonnie On June death of his der incarcerated for life. Petition- sentenced petitioner was Special Appeals. The Court appeal to the Court er filed Court the decision of the Circuit Special Appeals affirmed 460, 769 County Gray Md.App. for Charles (2001). A.2d 192 this of Certiorari a Petition for Writ

Petitioner filed 461, 773 granted. Gray Court, 364 Md. which we (2001). four presents petition, petitioner In his A.2d 513 for our review: questions that another individual

“1. a defendant asserts Where trial, is on that assertion the offense for which he committed suspect alternative evidentiary support, the possesses mat- concerning the Fifth Amendment invokes his ter, to the alternative question the defendant entitled jury? presence in suspect the Question I the trial court 2. Where the context permit question to the defense to the alternative refuses obligated court jury’s presence, in the the trial suspect explaining why the an instruction the propound person? question chosen not to apparently defense has from the excluding 3. Did the trial court err evidence indicating suspect of the alternative proffered statements offense, courts had and did the below he committed ruling upon trial court in this issue holding that the err made, may determine that such statements were never leaving jury? than that determination for rather admitting extrajudicial 4. Did trial court err in victim indicating statements of the murder her intention to planning inform that she was to end their mar- Petitioner riage?” first, respond question shall three and hold that the

We refusing permit, trial court erred under the declaration rule, against penal exception hearsay interest to the admission in evidence statement the alternative suspect suspect had indicated alternative committed petitioner guid- for which on trial. For the offense was purposes, questions ance we will later address one and two.

I. Relevant Facts Gray reported missing November Bonnie On by petitioner. body partially Her nude was discovered Gray trunk of her car on December 1995. Mrs. had head, gunshot ten suffered lacerations three wounds to head, Gray and a stab wound to the left chest. Mrs. also fingers had five of her severed.

juryA trial was in the held Circuit Court Charles County May 4, trial, from During March 1998. petitioner’s that his defense was wife was murdered Brian (Gatton). testimony Gatton There was witness about a rela- tionship Gray. Testimony Gatton and Mrs. was also between use, with his “obsession” drug about Gatton’s

presented jewelry after Mrs. knives, possession being his that owned was similar to that it was asserted Gray’s murder body found when her Gray but was not by Bonnie and worn discovered. was testify. The Cir- trial, Gatton to subpoenaed petitioner

At invoke his intended to aware that Gatton was made cuit Court Gatton against self-incrimination. right Fifth Amendment petitioner out testify by first called was therefore in the about his role questioned and was presence,1 he jury’s right. Fifth Amendment murder, invoked his to which Gatton his that could invoke Gatton determined The Circuit Court court, however, refused The trial privilege. Fifth Amendment Gatton, and thus to have petitioner question permit Amendment, in the Fifth rights his under the invoke Gatton also declined to instruct The trial court jury’s presence. silent. to remain had exercised jury that Gatton jury’s presence stand to the called Gatton in- date. Gatton was then only his name and birth asked then and the witness was petitioner next to to stand structed privi- exercise No about Gatton’s questions excused. requested then Petitioner lege permitted. were had instruction the witness give Court Circuit Court privilege. The Circuit his Fifth Amendment invoked jury. to the give that instruction declined filed a Motion proceedings, the State During pretrial Evelyn made Gatton statements Limine exclude testify as to Evelyn to Petitioner wanted (Evelyn). Johnson in her other statements made to her and statements made rule, hearsay to the exception Mr. as an Gatton presence interests. These state- penal Gatton’s statements victim, Gatton, he, had killed the to the effect that ments were Gray. Bonnie state, infra, court must determine whether we will trial

1. As any good lacks privilege is in faith or Fifth Amendment claim of the reasonable basis. proffered Evelyn testify It was would that Gatton was home, an occasional visitor in her and that on one more accompanied by Gray, occasions had Bonnie he been deceased, girlfriend. Evelyn alleged whom identified as his he that on point testimony at one her one occasion she heard arguing repeatedly telling Gatton and Bonnie with Gatton what going go Bonnie that “he was never to let her no matter she did.” On that occasion Bonnie left the residence Johnson Gatton, subsequently before and stated: bitch “[T]hat Gatton pissed me off’ and “if he couldn’t have her no one would.”2 disappearance, discovery After Bonnie’s but before of her her,” meaning told “I took of body, Evelyn he that care Bonnie. proffered Evelyn

It was further that would have testified subsequent that on a occasion Gatton came to her house when away raped days husband was after- her her. Several wards, her, saying, that I told “[I]f she testified he threatened point phase, permitted 2. At one in the trial the court this statement but interest, rather, against penal not a statement under state mind exception. exchange This occurred: "That if he couldn’t have her no one would. jury testimony THE COURT: . . . .. . Members of that be by you solely existing Bryan used then as to the state of mind you purpose.” Gatton and will use it for no other point during phase, question, precip- 3. At one the trial counsel asked a itating exchange: this you say Bryan “[DEFENSE In this statement did that COUNSEL]: Gray? Gatton admitted that he killed Bonnie [Objection by the State.] Why you THE COURT: did do that? [DEFENSE COUNSEL]: Because it is in the statement. Sir, gave specific rulings THE COURT: I that was not to come in. [DEFENSE COUNSEL]: Sir. you contempt. THE COURT: I if will I will decide be held in am sending out now for lunch.” judge referring later said he was defense counsel to "bar counsel disciplinary practices.” Thereafter, judge individually brought juror each back into the question. courtroom and them make no directed inferences from the any transcript We have found no further in the references trial being permitted presence jury. these statements in the just like he rape] would take care me [anyone about the he that on Evelyn would have testified of Bonnie.” had took care his boot and also handgun from pulled occasion he a small belt, showing on his them from a “case” hunting knife what I her with.” There killed Evelyn, saying, “[T]his this Evelyn initially proffered had not testimony that was also get was afraid to because she investigators information one dead.” “didn’t want to be the next involved. She hearing on the Motion March at the end of the On testimony Limine, hearsay held the Circuit Court against admitted as statement Evelyn should hearsay to the exception under interest made Gatton stated: rule.4 The Circuit Court “Now, testimony other motion also had on the we the State wishes filed on March the 6th where penal interest allegedly made exclude statements yesterday I counsel As I asked Mr. Gatton. mentioned quite frankly the were because specific what the statements I to rather confused. appeared from witness we heard night and I think part transcript last go through did statements[5] with. that we are concerned there are basic 5-804(b)(3) Maryland Rule states: 4. Hearsay exceptions; unavailable.

"Rule declarant 5-804. (b) by exceptions. following excluded Hearsay are not hearsay is unavailable as a witness: rule if the declarant (3) against A which was at the time interest. statement Statement pecuniary proprietary making contrary the declarant’s or of its so to interest, subject civil criminal to the declarant to so tended by liability, render invalid a claim the declarant or so tended to another, person position a in the declarant’s reasonable person believed it would not have made the statement unless tending expose to criminal A the declarant be true. statement liability to'exculpate the accused is not admissible unless and offered clearly of corroborating indicate the trustworthiness circumstances the statement.” statements, judge referring types presume was to two of 5. We the trial occurring disappearance and those afterwards. before the victim’s those during the actually such statements discussed There were several hearing. Motion in Limine State’s I quote, saying quote, The first is Mr. Gatton took care I quote, you anyone if tell will her and the second one just Gray. I took you take care of like care Bonnie Now, go unfortunately enough I did not have time opinion morning. a this Howev- detail and render detailed er, I give you reserving I will the bottom line. am hope I to do so tomorrow. supplement that which any time the first statement was made event high drugs Mr. on according to Ms. Johnson Gatton was and just talking. apparently drunk we were The second one if response, proceeded by question you was made in it was anyone going this is what I am tell do.

I find that each those declarations under the facts given would not man be made reasonable understand- ing making against penal he was statement interest.

Additionally I find that each the statements not trustworthy go through reliability and I will the lack of give my factors I opinion. when detailed However, of opening argument grant for the sake I will that motion also.” . subsequently sup-

The Circuit Court filed Memorandum plement clarify finding its from the March trial, hearing. At the petitioner end was convicted of first-degree murder and sentenced to incarceration life. appeal Petitioner filed an with the of Special Appeals Court which affirmed the decisions of the Circuit Court.

II. Discussion hold admitting We that the Circuit Court erred hearsay statements of Gatton into evidence under the against penal exception hearsay declaration interest to the provide guidance questions rule. We also to and two as one state, presented by petitioner. As we will infra, the trial court to has the discretion determine whether to allow a to call a testify, defendant witness to who the defendant crime, alleges having committed the for purpose presence right Fifth invoke his Amendment witness jury. Against Interest A. Statement hearing6 pretrial that at the argued is before this Court It relating to the position that the evidence State took the not by Gatton should be allegedly aforesaid made statements (Gatton was against penal interest as declarations admitted rights under the had exercised his because he unavailable Constitution, had to the United States Fifth Amendment witness, Evelyn was not a credible testify), because declined therefore, find that the statements and, trial court should fact, were, in not made. of Gatton grow prelimi- out of the error that would The seeds for the stated, State, in argument, hearing began when the nary which “Well, Matusky decision if would look the Court ... that is the go by have to because really the decision we type of Maryland decision on this issue.” State most recent (1996), substantially Md. 682 A.2d 694 Matusky, 343 and, legally, than the factually, respects, some different present case. was against penal interest the declaration Matusky, by and the statement was introduced

sought to be interest, not penal against to be the defendant’s alleged suspect. It was penal interest of an alternate against the however, defendant; the state- statement as inculpatory Matusky, by but was made codefend- was not made ment The declarant in Ma- being separately. was tried ant who been, unavailable, present have if was also would tusky, who Matusky would have had constitu- testify, a witness whom Here, sought to confront. the declaration right tional defendant, and thus the defendant’s introduced him is confront the witnesses constitutional Raker, Court, noted in Ma- implicated. Judge hearing place phase when the trial was imminent. The 6. took This selected, sworn. already been but had not been had 539 interest tusky against that when declaration of defendant issue, additional assur- requires is at the confrontation clause reliability against such interest ances of before declarations exculpa- case was should be admitted. The statement this Gatton, person as to tory petitioner inculpatory as to but alleged committed the crime. petitioner Special only held that Matusky, Appeals the Court of against penal of interest that were incul- parts the statement against portions admissible. The patory the declarant were against Matusky, who was inculpatory the statement that were declarant, redacted from the state- not the should have been noted, affirming Special Appeals’ ment. We the Court statement, trial that: reversal of the court’s admission Jr.,[7] court, “Writing Judge Joseph Murphy, for the rea soned that: 8] Williamson:[ Simmons, Wilson,

Applying case, judge facts of this trial we conclude that the should have excluded the statements White’s declaration that appellant’s appellant supplied identified as the killer and simply motive the murders. Those statements were self-inculpatory respect as to White.... With those portions of the declaration which White described role, cross-examination of would have been of White said, marginal utility appellant. cannot The same however, about other statements in the declaration. It is appellant important obvious that had an interest in cross- examining White unavailable out-of-court [the declarant] respect portions with to those which the declaration (1) (2) appellant White identified as the killer and dis appellant’s cussed motive for the murders. Those state ments should have been redacted from White’s declara tion interest.” Judge Special Appeals.

7. Now Chief of the Court of States, 2431, 8. Williamson v. United 512 U.S. 114 S.Ct. (1994); State, (1994); L.Ed.2d 476 Wilson v. 334 Md. 639 A.2d 125 State, (1994). v. Simmons 333 Md. 636 A.2d 463 475-76, Matusky Id. (quoting A.2d at 698 (1995)). A.2d Md.App. parties’ arguments relat- portions

We then examined cases, portions cases where collateral ing to redaction redacted) (or should statements are redacted have been from against declarations interest of the declarant. We admitted (Re- an issue. présented extensive discussion the redaction case.) It present issues are not the instant was in daction State we, in Matusky, v. general that context that discussed (1987), Standifur, 310 3, although portions Md. A.2d 955 as well. apply that discussion would other contexts We Matusky: stated in 955, Standifur, v. 3, 5,

“In State 310 Md. 526 A.2d (1987), question we of whether a declaration considered declarant, penal of an against the interest unavailable of- trial, a criminal against the State accused in fered sufficiently qualify common law was reliable under the a test exception hearsay rule.... We articulated deciding ... to admit a judges apply trial whether First, against proponent statement interest. must declarant is unavail- declaration demonstrate able.” 479,

Matusky, (emphasis Md. 682 A.2d at 699-700 added). part then discussed the second of the test enunciated in

We Standifur, the trial court must examine the reasonable- made, formulating it ness of the statement at the time was truly against the declar- opinion whether the statement interest, penal person-declar- and whether a ant’s reasonable perceived against have ant would the declaration to be Standifur, Quoting from noted penal interest. we then that the court must use next test trial to assess admissibil- the. ity of the declaration:

“[Wjhether present any there facts or are other circum- on the stances, including indicating falsify those motive declarant, part against cut presumption that so reliability normally attending against a declaration interest that the statements should not be admitted.” added) Matusky, (emphasis 343 Md. at 682 A.2d at 700 310 Md. A.2d (quoting Standifur, State (1987)). that, Standifur,

We then noted under there remains a “final inquiry.” against

“A analysis, statement interest that survives this and those related closely statements so connected with it as equally trustworthy, to be are admissible as declarations against interest.” (quoting Standifur,

Id. at 682 A.2d at 701 310 Md. at 962). 526 A.2d at Matusky, part opinion we next of our on focused them,

requirements, and the in dealing reasons for be used (as declarant) with collateral non-inculpatory state- (collateral) ments contained where those declarations state- declarant, ments are the interest of the but are damaging proffered to a defendant and are into evidence so, doing In in the State. we noted that when the Standifur addressed, reliability issue was it being was discussed in the of making context the declarant the statement while he was in police custody, being interrogated in circumstances where he parole. feared revocation of his noted our in We statement that “apparently curry he wished to favor with the Standifur and that authorities” noted for that reason the declaration was sufficiently 483, not Matusky, reliable. 343 Md. at 682 A.2d at 963). 20, 701 (quoting Standifur, 310 Md. at 526 A.2d at Because Court held that the declaration not Standifur sufficiently reliable due to the declarant’s and circumstances fabricate, “separate motive to it did not consider issues possibly generated by are the Confrontation Ma- Clause.” 483, tusky, (quoting 343 Md. at 682 A.2d at 701-02 Standifur, 963). 310 Md. at 526 A.2d at Supreme

We then discussed in Matusky several Court cases interpreting in respect the Federal Rules of Evidence to against penal declarations exception hearsay interest to the 542 States, rule,9 including Williamson United

evidence (1994). 129 L.Ed.2d 114 S.Ct. Our discus- U.S. respect only to of sion in that related the issue collateral restating discussed in Other than standards declarations. little, Matusky has any if to the Standifur, relevance issues court, Court, in this the trial and before this case. before key in our of the importance of resolution third One area case, predates adop- involves our question the Standifur Evidence, contrary interpretations and the tion of the Rules extent, To an parties of that case to which the ascribe. those whether, of, part what contrary interpretations relate Alvarez, of United States v. 584 F.2d Fifth Circuit case (5th Cir.1978), may may adopted we have Standifur. recognized- Standifur, discussing initially we note that we only with case that were then concerned

in that we admission of sought circumstances which the State inculpated by an statements unavailable declarant Standifur, requires We said in “This case consid- defendant. specific against penal of a class declarations inter- eration inculpate offered the State to a defendant in a est—those Standifur, criminal case.” State v. Md. A.2d (1987). part A balance our substantial exclusively was almost limited discussion Standifur prosecution to have admitted attempts evidence codefendants, that inculpate tend to the other statements exculpate the codefendant declarant. defendants We stated: probable

“In of mind of a reason- determining the state declarant, perhaps it is person position able totality of circumstances important consider under was made to consider the which statement contents experience may If that we of the statement. tells us recounting symptoms trustworthiness when one is presume exception hearsay interest to the evidence rule 9. The statement Maryland in the Federal Rules of Evidence as the Rule. See is the same 2. footnote him, that we is to treat it also tells us physician who made to ‘inevitably suspect’ a statement must treat as codefendant, implicating a even persons authority an admission of the though statement also contains implicating A defendant his confed culpability. declarant’s authorities, curry do favor with the may erate so to showing that bargain, to shift blame plea achieve with culpable, simply to have another another more Illinois,[10] In Lee v. Justice whom to share the blame. for Brennan said the Court: consistently recognized, a

As we have codefendant’s passages as to presumptively unreliable confession detailing culpability conduct or because the defendant’s codefend- passages may product those well be the blame, favor, spread curry avenge to shift or ant’s desire himself, or divert attention another.” (citations omitted). 13-14, at at 960 then Id. A.2d We discussed several other instances in which the Lee Court standing proposition referred to cases for the that declarations interest, against penal where the declarants are codefendants defendant, declarations to inculpate tend are presumptively untrustworthy. necessity

We discussed the a trustworthiness assess- admissibility types ment when the of these of statements are being considered. The context of that discussion concerned the trustworthiness the statement made the unavailable declarant, (i.e., credibility) not the trustworthiness of the in- court relator of witness the out-of-court declaration. We said pertinent part: surrounding making

“The circumstances state- ment out-of-court carefully [the must be ana- declaration] lyzed to determine the likelihood that the statement was analysis truthful. Critical this the state mind of the [out-of-court] declarant the time the statement was made. Unless the declarant [out-of-court] then believed the state- Illinois, 2056, 2064, 10. Lee v. 476 U.S. 106 S.Ct. L.Ed.2d 514, 529(1986). interest, is no basis for against penal his there ment to be However, unavailabili- reliability. because of the presumed proof, party the ty problems declarant and other prove actual exception required this is not urging prove but must sufficient state of mind of the declarant judge may from which trial inferen- surrounding facts what of mind of a reasonable tially determine the state or similar circum- person would have been under the same .... stances is that a important

... The more reasonable criterion in of the declarant would person [out-of-court] the situation deserving as at the time he perceived have the statement it.... made considering the admission of a summary, judge a trial against penal as a

hearsay statement offered declaration carefully must consider the content of the state- interest known and circumstances light ment in the .of all relevant surrounding making of statement and all relevant declarant, concerning information and determine wheth- against penal was in fact the declarant’s er the statement a situation of person interest and whether reasonable against that it perceived declarant would have judge it trial penal interest the time was made. The any present consider whether there are other should then circumstances, a motive including indicating facts or those declarant, falsify part on that so [out-of-court] .reliability normally at- against, presumption cut against statements tending declaration interest against A should not be admitted. statement interest analysis, survives this and those related statements so close- ly trustworthy, it are equally connected with admissible as declarations interest.” 12-17, (citations Standifur, 310 Md. at 526 A.2d at 959-62 omitted) (footnote omitted). (and holding generally)

The the cases Standifur assessing with the trustworthiness of the out-of- concerned inculpates, exculpates, statement that defendant.11 court any of which nothing Standifur, of our cases There aware, specifically permits in a trial a trial we are factual of the trustworthiness court make a assessment that excul- the in-court relator the out-of-court declaration credibility of the witness in such cases pates defendant. normally credibility generally to be assessed as witness determined-by trier of fact.12 An in-court relator of what the is, normally, has outside courtroom as to she heard the declaration, actually whether she heard the in the same wit- they ness situation as an in-court relator of what have seen Generally, credibility by outside the courtroom. is tested witness, examining especially by the cross-examination of the by opposing party, present witness which in case pre-trial hearing vigorous jury and extensive. In a trial, is, generally, it not the court’s function to assess type credibility.

The State and the trial court also considered the issue of whether Gatton had motive not to be truthful he when made post-rape Evelyn, his comments to attempting because he was words, rape. to intimidate her to be silent about other he, fact, First, did in fabricate it. some of his statements against his pre-dated rape interests and at a occurred time Evidence, adopted 11. When we incorporal provi- Rules of we ed a inculpatory exculpates sion that a declarant's statement an accused However, Standifur, needed corroboration. in that was not the hold- ing. stand, skillful, 12. confusion of ihe witness on the witness created witness, persistent, repetitive cross-examination such as case, fabrication, although occurred in this is not sufficient evidence of may put memory credibility. type it issue ihe witnesses' based That issue, however, determine, credibility jury in a trial is for the point argument pretrial hearing not for the At one court. at the “paid only the State referred to in-court relator for.” The any possible evidence of financial benefit to the in-court relator was investigators arranged apartment that defense for her to live on a temporary prior basis because of threats she had in her received nothing residence. We have found else in the record on this matter. enough What we have found is not for a reasonable conclusion that she “paid was a for” fabricator. pre-rape Evelyn. intimidate Those trying when he was going go to let her no was never included “he statements off,” did,” me pissed “that bitch victim] she [the matter what would,” “I took no one her [the victim] “if couldn’t have he substantially statements pre-intimidation of her.” The care declarations. post-rape corroborate Evelyn’s to corroborate proffered was also evidence Other There against interest. testimony statements about Gatton’s with Mrs. was involved proffered Gatton was evidence would upset when she triangle and became Gray in a love testimony Gray; to Mr. there was go him to home leave some of home when corroborating presence the Johnson hearing of both within the allegedly made statements were husband, Testimony was also Mr. Johnson. Evelyn and her (whose a confidant of Mr. Johnson that Gatton was presented testimony also that he rape); there was would later wife he jewelry to that worn similar possession had been it at her broth- Evelyn pawn some of victim and had murder pawn shop. er’s a watch similar attempted pawn to included jewelry she importantly, victim wore. More watch that

to the rings or included two three Evelyn attempted pawn jewelry body victim’s by the victim. When the rings worn similar missing five jewelry and also missing it was was found displayed that Additionally, Evelyn testified Gatton fingers. to her when the statements hunting and a knife handgun small to the by gunshots was three Gray Mrs. killed were made. Finally, stabbed. while gun and was also by a .22 caliber head husband had a Evelyn that and her was evidence there after, rape Evelyn’s and prior, with even relationship Gatton evidence, murder, little, that or no Gray’s there was and Mrs. any relationship petition- had with the Evelyn Mr. Johnson er.

Moreover, may attempting that have been the fact Gatton he, fact that and not detract from the Evelyn does intimidate know that the statements person, would any indeed reasonable lover, wife petitioner’s his murdered making was about he killed, it declaring and the woman Gatton was he had however him, penal was a was used statement his interest. just somebody; It was not a statement that he had murdered specific person it was a had statement he murdered relationship. with whom he had a His statement was corrobo- had, fact, specific person rated the circumstance that been murdered. present, petitioner

Under the circumstances here defense, i.e., to present entitled that Gatton killed Bonnie Gatton, Gray. through When the invocation of his unavailable, was, petitioner remain silent became under the case, present facts of this entitled to the Gatton’s against penal through declarations person interest declarations, allegedly Evelyn heard the Johnson. Under the present, circumstances it deny here was error to admis their Moreover, sion. testify, when Gatton declined to and trial court permit petitioner refused to to require Gatton to invoke his Fifth presence jury, Amendment in the infra, addressed compounded clearly preju the error was dicial. rulings The trial court’s evidentiary effectively blocked petitioner’s that, ability present a defense under the facts of case, this he was to present. entitled shall We reverse. reversing Because we are question presented, on the third it is not necessary to resolve remaining issues. Neverthe- less, importance because of the of the issues contained in questions two, one and shall guidance we address them for purposes. Right

B. Fifth Amendment discussing questions two, one we note courts defendant, should be mindful that a evidentiary within procedural restraints, and always is present entitled to his full defense to the trier fact. trial,

At petitioner subpoenaed testify. Gatton to The Cir- cuit Court was made aware that Gatton intended to invoke his Fifth right against Amendment self-incrimination. Gatton of the initially jury’s presence13 called out and therefore murder, to which questioned about his role

he was right. Fifth The Circuit invoked his Amendment Gatton could invoke his Fifth properly determined that Gatton Court privilege. Petitioner wanted the Circuit Court to Amendment Fifth privilege his Amendment make Gatton invoke of the that it would be presence jury. Petitioner contended put petition- not allow on a petitioner unfair to witness murder and that witness invoke alleges er committed the have jury in front because privilege his Fifth Amendment privilege evidentiary invocation of contains relevant very The Circuit supporting theory defense. inferences Court, distinguishable relying factually on cases of Adkins (1989) State, 1,Md. v. Bhagwat 557 A.2d 203 and (1995), 338 Md. 658 A.2d stated: and, before, Adkins I “THE COURT: As I’ve said under if Bhagwat, they say think it’s the court is aware someone is self-incrimination, going privilege to invoke it’s if range to be out of the and there supposed that, it’s I subsequent Bhagwat, I think '95 in would case happy to look it. That’s the status of the law current I as far as know. Well,

THE I haven’t had a chance to read the COURT: article, stage dealing I think at with law review but this court, I pretty circuit am well limited this issue on because on, Appeals very specific last two cases the Court are who was there the witness the Fifth Amend- when takes So, I will Adkins and and not allow Bhagwat ment. follow privilege jury.” Mr. Gatton invoke before was then stand his name Gatton called and asked stand next birth date. Gatton was then instructed to petitioner questions and the was then No witness excused. privilege permitted. about Gatton’s exercise of the were Peti- stated, supra infra, the trial determine 13. As court must whether good any the claim of the Fifth Amendment faith or lacks basis. reasonable give that subsequently requested tioner the Circuit Court respect in to Fifth as follows: jury instruction the Amendment right Fifth to “A witness has a under the Amendment the Maryland 22 of States Constitution and Article the United fully Rights testify testify to or not to when Declaration to witness stand.” The Circuit Court declined to called jury. instruct the that it was his at trial that Gatton

Petitioner states defense Gray support and that in of this ample killed Bonnie evidence trial law proposition produced. was The court relied on case it judice that was not to case sub when declined applicable petitioner question to and have him invoke his to allow Gatton right presence jury, believing Fifth in the Amendment instance, so, all to first that it had no discretion at do give requested and then it also declined to instruction. that was prejudi- Petitioner contends the trial court’s decision jury might skeptical to have cial his defense because the been why petitioner question to would not Gatton about the as murder, if, alleged jury, thought to that he Gatton might, according petitioner, to committed the murder. This jury petitioner to had not to ask lead the believe chosen any of a lack of questions Gatton about the murder out was, confidence his defense. Petitioner contends he least, jury trial court instruction give entitled have the concerning a witness’s to invoke the Fifth Amendment to being prejudice petitioner overcome the not allowed to question about murder in presence jury. Gatton Thus, contends, petitioner jury permitted any was not relating produced evidence the reason Gatton was as a witness, though even knew he was the courtroom physically available. privilege against self-incrimination

The can be traced back law, English privilege expressed to the common when the (No as Nemo tenetur prodere seipsum required one should be himself). betray (Bryan Black’s Law A. Dictionary ed., 1999). ed., Currently, 7th Garner West guaranteed against by Maryland self-incrimination is and fed- Maryland Rights law. 22 of eral Article Declaration incrimination) (Self man com ought no “[t]hat states case.” himself in a criminal against pelled give evidence to the United States Constitution Fifth Amendment states, Proceedings) in relevant (Rights of Accused Criminal any criminal compelled ... shall be person part, “[n]o In Malloy Hogan, a witness himself....” case to be (1964), 12 L.Ed.2d 1, 378 84 S.Ct. U.S. Fifth the Amendment Supreme Court held the through Fourteenth Amendment. to the States extended generally Maryland Rights Declaration of has 22 of the Article materia with its federal recognized being pari been 261, 265, State, 401 A.2d v. 285 Md. counterparts. Richardson (1979).14 1021, 1024 Richardson, to a where the wanted supra, case State

In jury, privilege before a of its witnesses invoke the have one generally procedure a court should examined the this Court his if a can invoke determining State’s witness follow when stated: privilege. Fifth Amendment We clearly set forth numerous cases predecessors “Our a witness determining followed in when procedures to be grounds on that the adduced may testify to evidence refuse him. The witness should first be called may incriminate State, v. Md. Midgett sworn. 223 the stand and indicate, infra, prosecution involved a witness. 14. we Richardson As Richardson, 282, State, (1960), cited in Midgett Md. 164 A.2d 526 v. 223 testify spite attempt by cause a witness to a defendant involved privilege. a case In other words it was of the witness’s assertion of privilege in which the challenging exercise of the manner privilege privilege The issue of the assertion of the was exercised. State, 169, jury in the v. 245 Md. a was not raised case. before Shifflett Richardson, (1967), involved State’s A.2d cited in also a 440 also State, 443, (1964), Royal v. 236 Md. 204 A.2d 500 witness. permitted call codefendants to the stand in the defendant was jury, whereupon they privilege. appeal, On presence claimed the properly codefendants could invoke their the issue was whether We held that the trial Fifth Amendment in the first instance. privilege. allowing the invoke the codefendants to court was correct request an below on the Fifth Amend- The defendant did not instruction appeal “plain We declined to privilege but on he claimed error.” ment relied on in Richardson is distin- the issue. Each of the cases decide present guishable case. from 526, (1960), denied, 853, 81 164 A.2d cert. 365 U.S. S.Ct. (1961). 819, Interrogation 5 L.Ed.2d 817 of the witness proceed point should then to the where he asserts his privilege against ground as a for not self-incrimination State, 169, answering question. v. 245 Md. 173- Shifflett (1967). 74, 440, case, jury 225 A.2d If it is a judge attempt should trial should then be dismissed and the pi'ivilege good ‘determine whether the claim of is faith State, any Midgett or lacks reasonable basis.’ v. supra, 289, interrogation Md. at 164 A.2d 526. If further pursued, ques should then witness either answer privilege, making tions this on asked assert decision 443, question by question basis. 236 Md. Royal (1964). 204 A.2d However, determining the standards for a wit- whether testify justified ness’ refusal fifth on amendment grounds States, were set out in v. United 341 U.S. Hoffman (1951). 71 S.Ct. 95 L.Ed. 1118 In Hoffman, the petitioner had testify been grand called before federal jury investigating racketeering. questions When con- asked cerning the whereabouts of a man who fugitive was a witness, Hoffman respond ground refused to on the that his answers might tend to him. incriminate This claim of privilege challenged by government, was the and a federal district court grand ordered Hoffman to return to the questions and answer the that had been asked of him. Hoffman was cited for contempt open when he stated in court obey that he would not the order. Supreme The Court held:

The privilege afforded not only extends to answers that would in support themselves a conviction a ... under criminal statute but likewise embraces those which would furnish link in chain of prosecute the evidence needed to claimant for a ... protection crime.... But this must be confined instances where the witness has reasonable apprehend danger cause to from a direct answer.... The witness is not answering exonerated from merely because he doing declares that in so he would him- incriminate hazard of not of itself establish the say does

self—his —so say whether It is for the court incrimination. if ‘it require ... and to him to answer justified, silence is ... is mistaken.’ to the court that he clearly appears claim, However, witness, upon interposing his were if the in a claim hazard in the sense which required prove court, would be established in he usually required be is which very protection surrender compelled, to privi To sustain the designed guarantee. implications only evident from the lege, it need asked, it is setting which question, ,to question explanation or an answer responsive because, dangerous might be why it cannot be answered judge ap trial could injurious disclosure result. by his as much governed claim ‘must be praising the peculiarities of the case personal perception of the 486-87, ... actually in U.S. [341 facts evidence.’ omitted)]. (citations S.Ct. surrounding Hoff- reviewed the circumstances The Court out jury, pointed grand before the appearance man’s to elicit information con- designed were questions that the witness, particu- fugitive more cerning his association with time that the witness larly during the associations might have jury. questions Because their eluding grand engaged in criminal that he had forced Hoffman reveal an appearance to avoid activity by helping the witness it was not the court held grand jury, before ‘ clear, of all the from a careful consideration “perfectly mistaken, case, that the witness circumstances tendency” to possibly cannot have such that the answerfs] [emphasis incriminate.’ 341 U.S. at S.Ct. conviction was contempt Hoffman’s reversed. original]. ago, nearly three decades Although was decided Hoffman by vitality recognized has both its continued been States, v. Mey- Maness Supreme e.g., Court of the United (1975); 584, ers, 449, 461, 42 L.Ed.2d 574 95 419 U.S. S.Ct. 445, 1653, States, 441, 406 92 S.Ct. Kastigar v. United U.S. 1, 11-12, (1972); Malloy Hogan, 212 v. 378 U.S. 32 L.Ed.2d

553 (1964), 1489, 12 84 S.Ct. L.Ed.2d 653 and the courts of this 539, State, v. 283 Md. 388 A.2d State. See Smith (1978); 707, 714-15, 542 v. 33 366 Payne Payne, Md.App. (1976).” 405, A.2d (altera-

Richardson, 265-67, Md. at at 1024-25 401 A.2d (footnote omitted). Likewise, v. original) Bhagwat tions State, 263, 272-73, 244, (1995), 338 Md. 658 A.2d Chief Bell, Bell, Judge Judge that: then stated the Court privi- test of “The the witness’s entitlement invoke the (1) lege against whether there is a rea- self-incrimination — (2) privilege; sonable basis for the invocation of.the faith, privilege good whether the is invoked in see Adkins v. State, 6-7, 205-06; supra, 316 Md. at 557 A.2d at Richard- State, 265, 1024; son v. supra, 285 Md. at 401 A.2d at State, 288-92, 529-31; v. Midgett 223 Md. at 164 A.2d at McLain, Evidence, 514.1, § Maryland supra, at 605 was State, 529, well stated in v. Choi 316 Md. 560 A.2d 1108 (1989). It is whether ‘the witness has reasonable cause to answer,’ 536, apprehend danger from a direct id. at A.2d at and whether it from implica- is ‘evident asked, question, tions of setting which it is responsive question explanation answer or an why it cannot be might dangerous answered because injurious disclosure could result.’ Id. at 560 A.2d at 1111.”

Bhagwat whether, was thus also primarily with concerned how, could be exercised. (1965), v. Vandegrift Md. 206 A.2d 250 we

adopted requirements five for a finding prejudicial court’s error when witness was called the State invoked Fifth right against Amendment self-incrimination. We stated:

“While, fortunately, previously we have not been called upon of, complained consider the situation here courts in jurisdictions other have had occasion to deal with it. The heavily case most on appellant relied is DeGesualdo (1961). People, Colo. 364 P.2d 374 In that case Supreme Court of calling Colorado held that the of an coconspirator as a witness under circum- accomplice or prejudicial similar to those involved here was quite stances (at 376): that p. apparent ‘It is The court stated error. good attorney possibly not have entertained district could * * * testify would if called that [the witness] faith belief attempt is that this was studied and thus the inference testify refusal to and his bring to the attention ’ This case is annotat- claim of the “Fifth Amendment.” in summar- in A.L.R.2d where the commentator ed question requirements lists five decisions on this izing the 1444-1445): (pp. finding prejudicial court’s error for a closely so appears that witness to have been T. criminal activities implicated alleged in the defendant’s privilege of a claim of that invocation the witness tending to establish the question asked a relevant when charged will create an inference of the witness’ offense will, turn, the defendant complicity, prejudice which eyes jury; in advance or had reason prosecutor ‘2. that the knew privilege, claim his anticipate that the witness would it, expecting him to waive had no reasonable basis therefore, improper faith and for an him bad called purpose; privilege; that the witness had a to invoke his

‘3. timely objection made ‘4. defense counsel misconduct; and exception prosecutor’s to the took trial court refused or failed to cure the ‘5. appropriate instruction or admonition error ”[15] jury.’ (alteration 308-09, original). Id. at 206 A.2d at 252 opined appropriate procedure on an We have heretofore presents person a defense that another when a defendant offense, physically but who is person committed the require the satisfaction of all five factors 15. This Court does not support a of a defendant’s conviction. Adkins v. order to reversal (1989). 316 Md. 557 A.2d present prior invokes his to remain silent. Our cases have, generally, testimony, involved State whose if witnesses defendant, .case, given, inculpate present would unlike the testimony, proffered privi- where the or the invocation of the silent, lege might provide exculpatory evidentiary to remain inferences. bar, defendant, State,

In the case at where it is not the the witness, court, desiring to call in deciding against the the trial allowing privilege the witness invoke his Fifth Amendment jury, holdings procedures in front of the relied on the and in supra, enunciated our decisions and Adkins v. Bhagwat, State, (1989). 316 Md. 557 A.2d 203 In its brief to this Court, upon the also two State relies these cases as well as State, citing Vandegrift, our cases of and Allen v. supra, (1989).16 Md. 567 A.2d 118 Attorney

In Vandegrift, the State’s called to the witness Vandegrift’s yet stand several of who had not codefendants tried, knowing been the would refuse to codefendants fact, testify right against based on their self-incrimination. right the codefendants did Fifth invoke their Amendment Inculpatory self-incrimination. inferences as to the defendant on trial from invocation of privilege resulted the the verdict, in that guilty case. This Court Vandegrift’s reversed holding that prosecutor “the actions of the the case before prejudicial.” 305, 309, us Vandegrift, were 237 Md. 206 A.2d (1965). 250, 253 There,

The same situation existed in Adkins. the defen- dant, Adkins, David felony-murder Cleveland was convicted of robbery. and The issue that this Court had to decide on appeal propriety involved calling accomplice “the as a state’s jury’s presence by witness when it is known court and counsel that the privilege witness will invoke the Adkins, against compelled self-incrimination.” 316 Md. discuss, Allen, Adkins, infra, holdings We 16. of this Court and Vandegrift, prejudice which all concerned the to a defendant witness, court, invoking who was called the State or the trial his presence jury. Fifth Amendment (1989). Darryl Adkins and Troxell were the 557 A.2d Teal, victim, Joseph to be Michael people last seen with The drinking together. three had been next when the men By floating was face down in a creek. day, Teal found trial, had and Adkins’s Troxell convicted sen- time of been Teal, although process was in the for the murder of he tenced appealing. trial, Motion in During hearing was held on a Limine that Troxell had with by Adkins exclude a conversation filed hearing, At the Troxell a brother-in-law Adkins. invoked right. Fifth The trial court stated his Amendment to Troxell because right Fifth Amendment was available- convicted, already though appeal even his he had been right Fifth Troxell still invoked his Amendment pending. if trial that he invoke it called at trial. The court stated would to call Troxell at presence jury, in the allowed once invoked his Fifth Amendment again trial. Troxell basis, afraid by question stating that he was question on a court, in appeal. trial compromising pending jury, instructed Troxell to answer then presence him in of court. contempt found factor applied Vandegrift the five test stated This Court and found that four of the five factors had been satisfied. Therefore, prejudiced, the Court held that Adkins had been stating: viewing invocation of

“In all of the circumstances of the Troxell, by prejudicial we hold that it was privilege the inquiry to conduct judge error for the trial the second Here, unavailability in of the both presence jury. the the accomplice and counsel aware court were the intended privilege against to invoke the self-incrimination as a result in Limine of Troxell. prior testimony of the Motion He clearly testify indicated that he would continue to refuse jury, notwithstanding if recalled before the the earlier find- facts, contempt. these court should not ing Under the accomplice jury allowed the to be before the have recalled purpose judge for direct examination. The trial the availability during should have ruled on Troxell’s the Motion record, procedure, making finding a factual on the Limine presence jury. out of the of our hold- presented,

Under the circumstances because ing require that it was trial court to prejudicial error the privilege against accomplice the invoke the self-incrimina- jury, tion in Adkins’ presence we shall reverse conviction and remand the case for a new trial.” (footnotes omitted). 14-16, Adkins at 557 A.2d at 209-10 Allen, defendant, Allen, Lloyd convicted trial, robbery deadly to his weapon. with Prior Allen’s witnesses, proffered proposed counsel that one of the Antonio Buie, Fifth right against intended to invoke his Amendment trial, At a hearing prior self-incrimination. Buie’s counsel upon asserting informed court that his Fifth Buie insisted privilege. Amendment The State indicated that it intended have Buie called as a court’s witness had because the State prosecuted past and Buie could not vouch for Buie’s credibility. hearing. The court did not rule at the trial,

At Buie was testify called the trial court to over his objection. privi- counsel’s Buie invoked his Fifth Amendment lege. The court then excused the found Buie contempt of court. day, presence The next outside of jury, court determined that it would call Buie as its protect witness because the court could Buie from future and, prosecution therefore, Buie did not have a basis for asserting his Fifth privilege. Amendment The trial court questions determined that the could occur in answers presence jury despite fact that Buie intended to invoke his Fifth privilege. Amendment Buie was called testify and Fifth he invoked his Amendment response questions to several asked prosecutor in the presence jury. Applying the the test in enunciated Vande- this grift, unfairly Court determined that Allen was prejudiced Buie, when the court called who Fifth invoked his Amendment privilege, as its own witness. We held that the court calling testify Buie to was if the same as he was called the State. of first judice the case sub a case presented The issue from distinguishable facts are impression for this Court the Allen, Adkins, All cases Vandegrift. three of those being testify by prosecution concerned a witness called to the court, they or should known that when knew have privi- his Fifth going was invoke Amendment witness prejudicial all lege. cases concerned effect—the Those defendant, this on a then inculpatory would have effect—that trial, alleged in all of the cases because the witnesses were crime was on complicit to be in the for which defendant privi- The Fifth invoking trial. -witnesses their Amendment of the would have lege presence jury prejudicial implicate would defen- effect an adverse inference that The at bar a defendant dant the crime. case involves (Gatton), call was not (petitioner) who wants to a witness who accomplice, claims person but rather the defendant crime, to or invoke his Fifth Amendment testify committed the jury. being was privilege presence in the witness he exculpatory purposes. Petitioner contends that called being to have invoke his prejudiced by able Gatton jury be- privilege presence Fifth in the of the Amendment concept his on that cause he had built entire defense committed the crime. Petitioner further contends Gatton presence his of the invoking outside Gatton peti- with jury provides an incorrect inference that did not tioner’s was frivolous or insincere because he defense question Gatton about the crime. reversing grounds, on it is not neces-

Because we are other sary procedure what the proper we determine this case whom present should be a defendant desires to witness when is the which a perpetrator defendant asserts crime for charged, defendant that witness desires to exercise however, We line again, remain silent. note that the so, Maryland subject generally, do cases address the contrary case at factual circumstances to the bar. that a

We trial court has some discretion believe permitting consider a defendant in a criminal to call a case privilege witness to the stand to his Fifth invoke Amendment presence the if the trial court first determines whether sufficient has presented, evidence been believable fact, any possible guilt trier of of the witness the defendant wants to cause to his Fifth invoke Amendment privilege court, jury. before the the exercise that discretion, consider, well, must prejudice the to the defense allowing potentially of not exculpatory the witness to invoke his privilege Fifth presence jury. Amendment the In the opining exists, that such discretion we note that such testimo- ny, if permitted, might subject be to the same restraints that a judge trial normally may to relevancy, repetitive- exercise as ness, and the like.

In judice, mb addressing case the discretion the trial court, of Special Appeals the Court stated:

“In Baxter v. Palmigiano, 425 U.S. S.Ct. (1976), 47 L.Ed.2d 810 Supreme Court held that Fifth ‘the Amendment does forbid adverse inferences against parties to civil they testify actions when refuse response probative against evidence offered them.’ Levitt, Kramer v. (1989), 79 Md.App. 558 A.2d 760 we evidentiary addressed the significance of a party’s invoking Fifth case, Amendment privilege a civil in response to discovery requests. We read Baxter to that mean three criteria must be met may before inference be drawn person exercising his Fifth privilege: Amendment 1) 2) case; the action must abe civil party seeking draw the case, inference must prima have made out a fama so that he is not relying on the adverse inference to 3) establish an action; element of his cause of person invoking privilege must party, be a not a witness. Id. at basis, 558 A.2d 760. On that that party we held who had privilege asserted the in response to discovery could not testify on the topic same at trial and that opposing party to an telling entitled instruction jurors could, they not, but need draw an from inference party’s invocation of the Fifth Amendment discovery to the would have been requests answers Id. at

adverse to his interests. 56-89 [586-89]. case, it party, that when asserted in a civil Given privilege may evidentiary Fifth take on Amendment significance, disagree we with courts that take the probative can never value to sweeping view there and, privilege of the in a criminal case witness’s assertion therefore, permit lack a witness to trial courts discretion to invoke take stand when it is known that the witness will privilege. question The whether a witness’s evidentiary in a privilege assertion of the devoid of value whether, policy, as a criminal case but matter of a trier of permitted give fact in be that act a criminal case should so, and, if We evidentiary value under what circumstances. that, agree with mindful that the courts defendant’s may rights[17] implicated, recognize Sixth Amendment be on in the trial court to the issue based discretion decide relevancy probative po of and value considerations versus Thus, Maryland, question tential effect. prejudicial defendant, whether, request upon of a criminal a witness may the'jury of when it is known that questioned be front reasonably good will and in faith assert the he testimonial by must 5- privilege application be determined Md. Rules 5-403.”[18] 401 and (Right

17. The Amendment to the United States Constitution Sixth Witnesses, Trial, etc.) Speedy states: prosecutions, enjoy "In criminal to a all accused shall trial, speedy public impartial of the State and district committed, wherein the crime shall have been which district shall law, previously have been and to be of the ascertained informed accusation; nature cause of be with the confronted him; compulsory process obtaining to have witnesses favor, in his and to have the of Counsel for his witnesses Assistance defence.” Maryland 18. 5-401 Rules and 5-403 state: "Rule 5-401. ‘relevant evidence’. Definition having any tendency ‘Relevant evidence’ means evidence to make any consequence fact that is of to the determination existence probable probable it action more or less than would be without the evidence. 460, 516-17, Gray Md.App. 769 A.2d 224-25 (2001). reversing Special Appeals’s While we are the Court of court, affirmance of trial disagree we do not with its statement above. agree part

While we with that Special the Court of Appeals’s holding, disagree approval we with their the trial court’s failure to use its discretion in judice. the case sub Special Appeals Court of stated “whether the trial court exercised its regard discretion this matters not.” Id. at indicate, 769 A.2d at 225. circumstances, As we in some including circumstances, these it matters. We conclude just as a trial court must determine whether a witness is properly invoking his Fifth privilege, Amendment the trial court must exercise its discretion and determine if a defendant will unfairly prejudiced by the court not allowing the defendant to call a potentially exculpatory witness that the defendant and the trial court know will invoke his Fifth Amendment presence jury. We are not holding in judice the case sub that sufficient evidence has been presented that would entitle the defendant to have Gatton presence take the stand in the jury of the and invoke his Fifth privilege. Amendment That is for the trial court to determine upon any discretion, retrial. In the exercise of it always should be remembered that such a defendant is to entitled have his fully presented defense to jury. the trial

While courts exercising are their discretion in determining if a potentially exculpatory witness called defendant should be to allowed invoke his Fifth Amendment privilege in presence the of jury, the trial the courts need to make sure that “sufficient” presented evidence has been make “[ajde- the matter relevant. “Sufficient” is defined as Rule grounds 5-403. Exclusion of prejudice, relevant evidence on of confusion, or waste of time. relevant, Although may probative evidence be excluded if its value substantially outweighed by is danger prejudice, of unfair confu- issues, misleading jury, sion of the or considerations of time, delay,

undue waste of presentation or needless of cumulative evidence.” 562 number, force, necessary or value

quate; quality, of as is such Dictionary Black’s Law A. given (Bryan 1447 purpose.” 1999). ed., ed., must be 7th West Sufficient evidence Garner any might possibly trier fact and reason- presented so proposed might committed ably believe that the witness have If sufficient the crime instead of the defendant. evidence analysis court with proffered, may proceed the trial then unfairly prejudiced by pro- would be whether the defendant from his Fifth hibiting invoking witness Amendment this jury. privilege presence have also held that the determination Other courts his Fifth a witness should be allowed invoke whether presence trial privilege in the Amendment (in instances, prosecu some even court’s discretion where witness). Kaplan, v. United States F.2d tor calls 832 (1st Cir.1987) (if a Fifth witness intends invoke the it is court in the discretion of the privilege, Amendment v. stand); United States him to whether allow take (“If Johnson, Cir.1973) 1206, 1211(1st appears F.2d it essentially as to all privilege a witness to claim the intends discretion, him may, court its to allow questions, the refuse Bowman, stand.”); United States v. to take the 636 F.2d (5th Cir.1981) (“The general rule is the trial once validity has as to Fifth court satisfied itself witness’s claim, discretion, may, in place Amendment it its decline to eliciting on for the a claim of purpose witness the stand Vandetti, v. States United privilege.”); F.2d (6th Cir.1980) (the prosecutor trial court allow a to call a can if witness will assert Fifth Amendment who seriously prosecutor’s prejudiced by case would be offer Martin, witness); United States ing him as 526 F.2d (10th Cir.1975) (“In it such circumstance was within well trial infor the discretion of the court refuse allow the to compelled mant to be called to the witness stand right his Fifth presence thereafter invoke Amendment (Ala. Reeves, Ex 177, parte jury....”); 463 So.2d 178 of the 1984) (“Trehern required have to stand should been take the invoked presence privilege in the of the his

563 which would any question to asked the defendant response answered.”); v. incriminating if State have elicited evidence (1983) (“In 70, McDaniel, 188, 194, light P.2d 76 136 Ariz. 665 ... decisions, prior holdings modify we must our of these an absolute to call witnesses they suggest insofar as they may properly fact that choose invoke regardless of the response to all relevant privilege Fifth Amendment their 476, (Mo.App. 479 Berry, State v. 658 S.W.2d questions.”); 1983) (“The testify within permit a witness to lies refusal it ... that the judge discretion of the trial when is claimed Thomas, privilege.”); People claim of v. witness will invoke his 941, 466, 472, 931, 934, 944 N.E.2d 434 51 N.Y.2d 415 N.Y.S.2d (1980) (“[T]he permit whether to defense counsel decision him claim of particular solely put ‘to to his call a witness presence jury’ of the privilege against self incrimination court.”); trial People within sound discretion of the rests (“It (1993) Patrk, 718, 718, 798, 799 v. 191 A.D.2d 595 N.Y.S.2d trial has broad discretion is well-settled court or not to allow a defendant to call determine whether his purpose having the witness invoke witness v. privilege against jury.”); before a State self-incrimination 541, 685, 692-93, 518 545-46 Stanfield, N.C.App. 134 S.E.2d (the (1999) its not trial court did not abuse discretion allowing who would invoke his the defendant call witness Porth privilege presence jury); Fifth Amendment of the (“We State, 236, (Wyo.1994) 240 hold the trial v. 868 P.2d to call a court has discretion to allow or disallow the defendant will his Fifth witness the stand who the court knows invoke privilege against pres- Amendment self-incrimination in the jury.”).19 ence We note that there are courts that have held that a trial court can

19. testify only going allow if to invoke a witness to the witness is presence jury. Fifth Amendment in the United States v. States, Licavoli, 613, (9th Cir.1979); 604 F.2d Bowles v. United 536, Fletcher, 314, (D.C.Cir.1970); People F.2d 316-17, 541-42 v. 193 Colo. 85, (1977); Apfel 86-87 566 P.2d v. 429 So.2d Cvetich, 1983); Ill.App.3d (Fla.Dist.Ct.App. State v. (1979); Lashley, Ill.Dec. 620, 625-27, 391 N.E.2d State v. 233 Kan. (1983); People Dyer, 425 Mich. 664 P.2d 1364-65

564 that the crime proffers defense

When a defendant wants person another and the defendant was committed his Fifth Amend only to invoke person witness that call as a on the witness.stand agáinst self-incrimination privilege ment record, court, trial on the jury, presence in the of the other evi of whether sufficient should make a determination fact, that, by any trier of if believed proffered has been dence commission of the crime. witness to the might link the accused evidence, linking the that such sufficient If the trial court finds by any trier of crime and believable accused witness of fact to infer fact, any cause trier possibly that could exists crime for which have committed the might that the witness tried, trial court has the then the being the defendant normally may appropri and limit as permit, discretion to witness, about his ate, generally, question the defendant him his Fifth and have invoke in the offense involvement jury’s presence. right Amendment “Gatton-type” permit fails to the trial court Where presence Fifth in the to invoke the Amendment of witness court, give upon appropriate request, should jury, the trial witness, jury, under a full instruction to the above, has invoked his circumstances described self-incrimination, and, therefore, is unavailable to the defen permitted “Gatton-type” if a of witness dant. Even presence privilege, Fifth Amendment invoke a circumstances, might still be enti party, in some jury, either given jury. to the appropriate instruction tled to have case, it not have trial court believed did present In the to call Gatton to the stand any permit discretion to defendant Fifth Amendment having him invoke his purpose for the Nunez, 127, 572, (1986); N.J.Super. 131- State v. 209 390 N.W.2d 645 Pritchard, 1295, 33, (1986); Commonwealth v. 506 A.2d 1297-99 810, (1979); Hughes, 328 S.C. Pa.Super. 411 A.2d State 1097, 152-55, 821,823-25 denied, 146, (1997), U.S. 493 S.E.2d cert. 798, denied, nom., Washington v. L.Ed.2d cert. sub 118 S.Ct. States, (1998); 141 L.Ed.2d 718 United 524 U.S. 118 S.Ct. aff'd, (Tex.App.1982), 683-84 Chambliss v. 633 S.W.2d 1983). (Tex.Crim.App. S.W.2d 257 trial presence jury. Accordingly, reversing are on court exercised no discretion. Because we grounds, do not have to determine whether the another we issue, although, its discretion on this we trial court abused note, actual that our cases hold that the failure exercise is an abuse of discretion. discretion

III. Conclusion prejudicial hold that it was for trial court to We error through testimony to admit in of Ms. refuse evidence Johnson, against penal interest. the declaration Gatton’s light holding,

In of our we decline to address further the remaining issues. THE

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; REMANDED THAT CASE TO COURT THE WITH DIRECTIONS TO REVERSE JUDGMENT THE OF CIRCUIT COURT FOR CHARLES COUNTY AND TO REMAND THE CASE THAT FOR A TO COURT TRIAL; IN AND NEW COSTS COURT THE THIS BE PAID BY COURT OF SPECIAL APPEALS TO CHARLES COUNTY.

RAKER, J., opinion joined by concurred and filed HARRELL, WILNER, J., WILNER and and JJ. concurred HARRELL, opinion joined by filed RAKER and JJ. BATTAGLIA, J., and opinion. dissented filed

RAKER, Judge, concurring, joined by WILNER & HARRELL, JJ.: join

I in opinion reversing judgments of the Court concurring opinion Judge conviction and in the Wilner. failing testimony regarding The trial court to admit erred against Brian penal Gatton’s statements as declarations 804(b)(3). pursuant Maryland interest Rule The trial 5— refusing permit court also petitioner erred to call Gatton to the witness stand to his Fifth invoke Amendment jury. self-incrimination before the GRAY [368 Md. v. STATE (2002).] case, in this the admissibili presented hearsay question witness, Evelyn in-court through the declaration

ty of Gatton’s Maryland evidentiary Johnson, by consideration of is resolved hearsay; implicate it does not and, the law of particularly, law evaluating right to confrontation. Amendment the Sixth on basis of the hearsay statement admissibility of avoid exception, we should declaration-against-penal-interest analysis with constitutional hearsay exception conflating the of the Sixth Amendment. Clause under the Confrontation First, although the statement- reasons. This is so several con often arises exception most against-penal-interest cases, equally hearsay exception applies text of criminal Second, excluding hearsay and although the rule civil cases. values, they often similar are protect Clause the Confrontation substance, a higher standard application different Clause. admissibility required under the Confrontation as to Evans, 210, 27 L.Ed.2d 213 91 S.Ct. v. U.S. See Dutton (1970) equated has never the hear that the Court (explaining Green, Clause); say and the Confrontation rule California (1970) (stating 26 L.Ed.2d 489 399 U.S. S.Ct. that, hearsay and the Confrontation Clause although rules recog values, may fall within a a statement protect similar its admission would nonetheless hearsay exception while nized Clause); Capowski, John J. State Confrontation violate the Interest, and the Reliability Against ments Confrontation (1997). 471, Clause, 494 Hall L.Rev. Seton hearsay and the rule the dissent conflates Because Clause, clarify and important I think it Confrontation See, n. 1 op. diss. at 586 e.g., distinctions. expand upon their hearsay “firmly exceptions to the rule rooted” (discussing the Clause); of the Confrontation admissibility purpose for the 333 Md. (citing op. diss. at 586 Simmons (1994), case, 463, Clause and errone- a Confrontation A.2d showing particularized must ously stating that “there Mary- as the standard under of trustworthiness” guarantees 5-804(b)(3)); op. (proposing diss. at 586 land Rule for provide the basis Clause principles the Confrontation inculpating of trustworthiness guarantees the additional statements). separately I write to address the Court’s also 343 Md. 481 n. 682 A.2d Matusky, reference State v. (1996), Alvarez, F.2d 700 n. 7 to United States v. (5th Cir.1978). As to of a witness’s Fifth Amendment the exercise agree and the jury, majority opinion before the I with the that, concurring opinion Judge when the witnesses Wilner defendant, by it is within the trial court’s discre- called or her Fifth tion whether to allow that witness to exercise his jury. separately I Amendment before the write relevancy address the vel non of the witness’s assertion Amendment, permissible scope inquiry Fifth before the jury, instructions.

I. The Declaration Penal Interest Against . trial, At petitioner testify. called Gatton to When Gatton privilege against his Fifth invoked Amendment self-incrimina- testify, petitioner tion and refused to called Johnson and sought through exculpatory to introduce her state- several purportedly penal ments made to her Gatton maj. op. (detailing exculpa- interest. at 534-37 the several See tory petitioner through statements wished introduce testimony). Johnson’s Gatton’s offered statements were interest, petitioner against penal exception as declaration 804(b)(3). hearsay Maryland rule under Rule The primary hearsay judge in this trial issue case is whether the in failing abused his discretion to admit into evidence John- testimony killing son’s that Gatton had admitted Bonnie Gray. controversy parties between the as to the corroboration

requirement may trial into judge whether the take consider- credibility argues ation the of the in-court witness. The State 804(b)(3) that the statements do not fit within Rule because a person position reasonable Gatton’s would have made the though they argues statements even were not true. The State that, 7, language based on the 343 Md. at 481 n. Matusky, Alvarez, 702), (citing 682 A.2d at 700 n. 7 584 F.2d at a trial 568 that would any facts or circumstances

court should consider reliability of a statement presumption of the against cut the to, credibility interest, including, but not limited against agrees with the State.1 in-court witness. The dissent are against penal that statements interest argues Petitioner hearsay, prohibition against simply exceptions to do not include consideration corroborating circumstances witness, that consideration credibility in-court as fact finder. credibility usurps jury’s role contrary is one that is against penal A interest declaration made,' at the time that it penal interest to the declarant’s made the would not have person that a reasonable such it to A decla- believed be true. person unless statement as an is admissible evidence against penal ration interest as the hearsay long so precluding to the rule exception penal contrary person’s To to a is unavailable. declarant interest, person to subject must tend to the statement is that theory underlying exception this liability. criminal inter- against their ordinarily do make statements persons 804(b)(3) advisory are true. See Fed. R. Evid. they unless est 126-27, 116, 119 Lilly Virginia, v. notes; 527 U.S. committee’s (1999) v. Chambers (quoting 117 144 L.Ed.2d S.Ct. 284, 1038, 1047-48, Mississippi 410 U.S. S.Ct. (1973)) founded on (noting exception that the is L.Ed.2d 297 unlikely to fabricate person “that a assumption made”); it at the time against his own interest statement (1987).2 Standifur, 310 Md. 526 A.2d State admitting evidentiary the state- basis for 1. The dissent conflates analysis Clause in con- interest and the Confrontation ments credibility the in- cluding trial court should consider assessing reliability hearsay statement. witness when court Case, (1844), Peerage Eng. Rep. Dating 2. back to the Sussex confessing admissible to the commission of a crime was not declaration against penal interest. See McCormick in evidence as a declaration on ed., rule, (John ed.1999). Strong, Evidence, § 5th This followed criticism, particularly country, came courts in this under most Wigmore, who wrote: Professor may be in evidence as a Before a statement admitted interest, against the court must find it to be reli- statement Capowski appears Professor sets forth what to me be able. appropriate approach resolving statement-against-inter- issues, suggesting est and Confrontation Clause that it “would appropriate] recognize stages steps the distinct [more exception involved the decisions and avoid the conflation of analysis.” Capowski, and constitutional at 510. supra, He writes: declarant, deciding unavailability

“After a court if any portion against needs to discern of a statement and, so, parts against if which interest the statement are interest, portions self-serving, which are and whether there only practical consequences unreasoning "The of this limitation are for, shocking justice; application, to the sense of in its commonest it trial, confession, requires, rejection in a criminal of a however authenticated, person well of a deceased or insane or from the fled (and unavailable) jurisdiction quite therefore who avowed himself has culprit. to be the true steps, ... It is therefore not too late to retrace our and to discard doctrine, this barbarous which would refuse to let an innocent by producing perfect- accused vindicate himself even to the tribunal a confession, ly very gallows, by authenticated written made on the culprit beyond justice.” true now the reach of Wigmore, Henry (3d ed.1940). Wigmore's § 5 John view Evidence Donnelly was embraced Justice Holmes his now famous dissent States, 243, 277-78, 449, 461, v. United 228 U.S. 33 S.Ct. 57 L.Ed. 820 J., (1913) (Holmes, dissenting), Supreme a case which the Court rule, recognize any penal exception hearsay refused 1o interest to the only permitting pecuniary perhaps proprietary as suffi- interests ciently Donnelly great reliable to be admissible. received a deal of and, result, criticism as a when the Federal Rules of Evidence were by Congress, drafted and under consideration several different versions emerged providing against penal the admission of declarations Evidence, states, interest. The Federal Rules of and those of most now permit against penal admission into evidence of declarations interest. Supreme ultimately recognized, Mississippi, Court v. Chambers (1973), 410 U.S. 93 S.Ct. 35 L.Ed.2d 297 that "the Due Clause Process affords criminal defendants into introduce parties’ against penal evidence third declarations interest —their confes- surrounding 'provide sions —when the circumstances the statements ” Lilly reliability.' Virginia, considerable assurance of their 527 U.S. 1887, 1897, (1999). 119 S.Ct. 144 L.Ed.2d 117 interest nor self- any against that are neither portions are serving. ... cases, with the analysis

... should end here In civil portions that are interest admitting those court closely related. portions that are the neutral cases, its begin court should stage At this in criminal analysis. The court should decide Clause Confrontation reliability ‘indicia of has sufficient or the statement whether absent confrontation.” reliability’ to be admitted reliability, Capowski assessing Professor Id. at 510-511. standards for reliability forms of and different three identifies one, noting: applying each reliability that is to be

“First, standard for there is the This stan- establishing [hearsay] exception. an applied in dard, reliability,’ requires type that the of state- ‘exception logic underpinning reliability general some ment have of a example, For the case experience. and human interest, unlikely say persons are against statement they interest unless are true. things against their established, individual statements exception is Once they requirements if fit to be tested to see have reliability sufficient to be admissi- exception and thus have reliability, reliability,’ ‘admission involves ble. This form reliability being or application of the case tried specific appeal. on decided case, reliability analysis a third form of is

In a criminal application of Confrontation Clause required because introduction of potential to the evidence principles reliability’ cannot cross-examined.... ‘[I]ndieia reliability’ requires higher standard Clause ‘Confrontation major analysis reliability.’ than ‘admission A reliability reliability’ ‘firmly is rooted subpart of ‘Confrontation Clause reliability.’ independent inquiry ‘No into reliabili- exception firmly evidence “falls within a rooted ty required when ’ ” hearsay exception.” implicat- not Id. at 483-84. When the Confrontation Clause us, not into ed, step does come as in case before three noted that: regard, Supreme In this Court play. are, definition, by of this hearsay statements sort

“because accused, of such statements the admission offered Thus, concerns. implicate Confrontation Clause does of such reliability there is no need decide whether inherently they would dependable statements is so firmly hearsay exception.” constitute a rooted 130, 119 1897, 144L.Ed.2d 117. at Lilly, U.S. S.Ct. ordinarily are offered against penal Statements interest (1) evidence, trials, as in criminal in three circumstances: (2) declarant, exculpatory as voluntary admissions by a to establish that the declarant evidence offered defendant (3) offense, committed the evidence offered guilt accomplice of an prosecution to establish the 1895, 144 117. id. at 119 S.Ct. at L.Ed.2d declarant. See case, situa- In the instant we are concerned with the second tion. 5-802, not Maryland hearsay

Under Rule admissible except provided by applicable provisions or constitutional 5-804(b) hearsay exceptions statutes. Rule outlines apply rule that when the declarant is unavailable as a witness. interest, exception such is for against One statements which are defined as follows:

“A making statement which was at of its so time contrary to pecuniary proprietary the declarant’s inter- est, subject so tended to to civil or criminal declarant liability, or so tended to invalid a claim render another, that against person declarant a reasonable not position declarant’s would have made the statement person unless the it to true. A believed be statement tending expose liability the declarant to criminal and exculpate offered to the accused is not admissible unless corroborating clearly trustwor- circumstances indicate the thiness of the statement.” 804(b)(3). 804(b)(3), Thus, under Rule

Maryland Rule 5— 5— hearsay exception for declara- common law codification interest, hearsay exculpating the statement against tions (1) if declarant is may admitted in evidence defendant (2) unavailable, genuinely adverse the statement (3) interest, corroborating circumstances and penal declarant’s of the statement. clearly indicate the trustworthiness Court, judice, found that the in the case sub The Circuit parts and third of the test: failed the second statements man not be made a reasonable the statements “would making against penal a statement understanding that he was trustworthy. Ac- not and that the statements were interest” into to admit the statements cordingly, judge refused evidence. unavailability case, requirement of the threshold this Gatton, disputed is not and has been satisfied.

under the rule testify, Fifth having asserted his Amendment Green, at 168 n. 399 U.S. S.Ct. was not available. See Harrell, 489; States v. at 1940 n. 26 L.Ed.2d United (11th Cir.1986); 331 Md. Nance F.2d (1993). 633, 645 629 A.2d Rule, then, is whether inquiry under the Gatton’s

The next “I penal interest. The statements statements were her,” just like had took would take care me took care “he Bonnie,” “this is what I killed her with” amounted care of victim, Gray. Bonnie The that he had killed the to admissions does not contend otherwise. State do not fit within trial court that the statements held 804(b)(3) posi- person because a reasonable Gatton’s Rule they though even were tion would have made the statements way expect- trial court found that Gatton no not true. The “high any harm from his statements because he ed wife, crack-companion’s to “his speaking drunk” he was has far already physically attacked whom he so woman he had silence,” could have successfully probably cowed into and he Evelyn’s from the silence. expected benefit statement — sufficiently subject to alleged statements tended Gatton’s man in his liability position him to criminal that a reasonable unless he believed them would not have made the statements amounted to a clear admis- to be true. Some of his remarks Gray, killed and others amounted to sion that he Bonnie A incriminating him in her murder. reasonable statements position would have realized that comments person Gatton’s Gray’s him in Bonnie murder implicating attributed to him subject liability. to him to criminal Even would have tended though may drugs he have been under the influence alcohol, important against his statements would be evidence murder, him if he were on trial for the and he had to realize trial court the detrimental character of the statements. The erred, therefore, in finding they pose did not the sort of hearsay exception contemplates. threat to his interest that the I am not unmindful of which the circumstances under proffered may statements were made and that Gatton readily expected so his repeated have remarks have been However, police. require does not the rule actually speaking witness be to someone who could cause him Harrell, prosecuted. to be See 788 F.2d at 1527. Further- more, impugn the contextual “so far circumstances do not reliability presumed disserving from remarks’ character first part take them outside the of the Rule.” United States (1976). Barrett, Chambers, v. 539 F.2d See 410 U.S. (holding 93 S.Ct. at 35 L.Ed.2d 297 that a “spontaneously acquaintance” confession made close reliable); sufficiently Bagley, United 537 F.2d 162 States (5th Cir.1976) (finding falsely that a reasonable man would not admit to the commission of serious crime to a cellmate know- chance, ing slight, that there was a even if that it could lead conviction). interest, against penal Since the statements were Gatton’s they corroborating were admissible if clearly circumstances I indicated the trustworthiness the statements. As have noted, requirement corroborating circumstances was statement, designed protect possibility that a defense, exculpate offered would fabricated to upon by the trial I think that the factors relied defendant. requir- part under the of the rule court better considered are whether, overall, cor- there is sufficient ing an evaluation trustworthiness of the state- clearly to indicate the roboration Professor McCormick notes: ment. of, for, and definition corroboration proper

“Both role the hopelessly con- against interest is almost for statements .... fused defendant, exculpate

Turning first to statements on the corrobora- disagreed courts have whether the federal veracity of the in-court requirement applies to tion was made in addition testifying that the statement witness showing that the statement itself clearly required to the trustworthy.” (John ed., Strong, 5th § 319 Evidence, on

McCormick ed.1999). recognized have the nature Courts 804(b)(3) pre- is not required by Federal Rule corroboration delineated, several although some courts have identified cisely determining whether sufficient factors deemed relevant into to allow the declarations evidence corroboration exists Bumpass, v. the rule. See United States 60 F.3d under factors, (4th Cir.1995).3 considering the identified in which a vigilant evaluating the context courts must be what particular, by whom and under statement is offered—in example, by For if offered the State circumstances. defendant, may implicated, be the Confrontation Clause Cir.1995), (4th Bumpass, Judge Paul v. 60 F.3d 1099 3. In United States Appeals Niemeyer, writing United States Court of for the Fourth for the Circuit, precise required that "the nature of corroboration noted 804(b)(3) fully suggested, described.” Id. at 1102. He Rule cannot however, that to consider under the rule include: factors "(1) making had at the time of the statement whether declarant exposed prosecution making the pled guilty for state- or was still ment, (2) making motive in and whether the declarant's statement lie, (3) whether the declarant reason for the declarant there was a (4) consistently, party or repeated the and did so statement made, (5) relationship parties to whom the statement was accused, (6) strength the nature and with the declarant question.” the conduct in independent evidence relevant to Id. than triggering additional and often different considerations hearsay is offered the defendant as when statement See, 822-23, 497 U.S. exception. e.g., Wright, Idaho (1990) (holding 111 L.Ed.2d 638 110 S.Ct. rely corroborating cannot on to conclude that courts evidence hearsay trustworthy purposes statement Clause).4 Confrontation important

It is to note that Alvarez involved the admissibili- ty hearsay of a that as to inculpatory statement the and, such, as was a That accused Confrontation Clause case. issue, however, today.5 is not us before Again, important keep 4. it is in mind that the standards for admissi- bility under the the Confrontation Clause are stricter than under hear- corroboration, say exception, requiring hearsay independent while the exception why important under the rule does not. That is it is so keep analysis hearsay separate the and not to use and Confrontation interchangeably. Clause cases factor, cotmtry split viability 5. of Courts around the are as to the the Alvarez, 694, (5th 1978), outlined in United States v. 584 F.2d 701 Cir. that, 804(b)(3), hearsay before a statement is admissible under the trial credibility court should consider a matter of the in- as threshold the See, assessing court witness in the the trustworthiness of statement. (2nd Cir.1983) e.g., Katsougrakis, 777 United States v. 715 F.2d (noting by adopt position Fifth "[w]e that do not taken the Circuit credibility that the of the in-court witness must be evaluat- [in ] Alvarez jury testimony inculpates permitted ed before the to hear that both accused”). the out-of-court declarant and the Alvarez, impose the court "was also concerned that a failure to a requirement against corroboration would allow statements interest statements, coconspirator become an easier alternative admission of required proof conspiracy.” which it believed external of the McCor ed., (John ed.1999). Strong, § 5th A statement on mick Evidence coconspirator during conspiracy made one the course of the and in hearsay exception. furtherance thereof is admissible in evidence as a 5-803(5) ("[a] Maryland by coconspirator See Rule statement a of the during party conspiracy”). the course in furtherance of the Under and States, 171, 183, 2775, 2782, Bourjaily v. United 483 U.S. 107 S.Ct. (1987), analysis, firmly L.Ed.2d 144 in the Confrontation Clause as a hearsay exception, independent inquiry reliability rooted no into Roberts, 2531, 2539, required. See Ohio v. 448 U.S. 100 S.Ct. Thus, (1980). 65 L.Ed.2d 597 if the had statement been Alvarez interest, could, fact, against penal admitted as a it declaration have expanded admissibility coconspirators’ statements to include Thus, conspiracy made after ones ended. when offered the State statement, Clause, inculpatory implicating as an the Confrontation what I should be the sets out believe Professor McCormick against penal a the defendant offers statement rule when a hearsay rule: “As matter exception interest as an credibility in-court wit- hearsay analysis, standard is not an fact that the statement was made regarding the ness- 319. See supra, §at McCormick, inquiry.” appropriate (2nd Katsougrakis, States v. 715 F.2d Cir. United Alvarez, 1983) noting 584 F.2d at (disapproving of in-court a assessment require preliminary that “to would, usurpation credibility judgment, in our witness’ (3rd Atkins, States v. function”); F.2d 133 United Cir.1977) an in-court witness as (rejecting credibility Rule to exclude evidence under consideration whether 804(b)(3) 804(b)(3) court to stating that directs the “[r]ule declarant, witness”); not of the trustworthiness Goodlow, (8th Cir.1974) States 500 F.2d United admissibility of a considering statement (noting, penal hearsay exception, “[t]o interest declaration is such credibility of these witnesses [in-court] reason attempts to substi- testimony would not be believed their fact-finding preroga- in an area where judicial tute discretion circumstances, court, may appropriate it well be for the under those matter, credibility in of the in-court witness a threshold to consider assessing the trustworthiness of the statement. however, viability suggest, that the of the factor in the center I Alvarez analysis, may controversy, be this even within a Confrontation Clause of upon language plurality doubt based of Justice Stevens serious 116, 1887, Lilly 144 L.Ed.2d opinion Virginia, v. 527 U.S. 119 S.Ct. (1999). discussing review for appropriate In standard of hearsay guarantees determining particularized a has whether statement purposes, plurality of trustworthiness for Confrontation Clause review, opinion, adopting a de novo standard of stated: surrounding circumstances relevant to a Sixth Amendment "But the admissibility include the declarant's in-court determination do not (otherwise any testifying) the declarant would he or other demeanor uniquely province suited to the trial courts. For these factor reasons, deciding when whether the admission of a declarant’s out-of- Clause, court statements violates the confrontation courts should guarantees government's proffered independently review whether the satisfy the demands of the Clause.” of trustworthiness 116, 1900, 134, (emphasis Id. at 527 U.S. 119 S.Ct. at 144 L.Ed.2d 117 added). control”); Cudjo, v. People Cal.Rptr.2d tives 6 Cal.4th (1993) (holding 863 P.2d that the credibility of a proper in-court witness was not consideration the context admissibility of evidence offered under declaration- hearsay exception). against-interest matter, hearsay court, As a present basic the witness is fully can be cross-examined as to whether the statement was made, actually can fully the fact-finder and should evalu credibility. hearsay ate the witness’s Unlike the declarant necessarily testify, who is unavailable to the in-court witness cross-examination, present subject the courtroom and is enabling jury credibility any to assess as with other admissibility witness. The should the statement be deter ordinary mined under and should rules evidence require only controlled Rule 5-104.6 The rules that the corroborating clearly circumstances indicate the trustworthi statement; they ness of the need not remove all doubt with respect hearsay to the statement. 60 F.3d at Bumpass, See Brainard, (citing United States 690 F.2d (4th Cir.1982)). Judge Moylan, writing the Court of Maryland provides 6. Rule 5-104 as follows: “(a) Questions admissibility generally. Preliminary questions con- witness, cerning qualification person of a to be a the existence of privilege, admissibility or the of evidence shall be determined court, (b). subject provisions making to the of section its determi- nation, may, justice, require the court in the interest of decline to evidence, application except strict relating of the rules of those competency of witnesses. (b) Relevance on conditioned fact. When the relevance of evidence fact, depends upon the fulfillment of a condition of the court shall to, upon, subject admit it the introduction of evidence sufficient support finding by the trier of fact the condition has been fulfilled. (c) Hearing jury. Hearings preliminary on matters shall be con- hearing required by ducted out of the when rule or the justice. interests of (d) not, Testimony by by testifying upon accused. accused does preliminary admissibility, subject matter become to cross-examina- tion toas other issues in the case. (e) Weight credibility. and This rule not limit does of a party weight to introduce before the trier of fact evidence relevant credibility.” A.2d Jacobs Md.App. in Appeals,

Special view as follows: (1980), succinctly expressed the same regard is the trustwor- in issue this “The trustworthiness declaration, assuming it to have been made thiness form recounted from the been made have who trustworthiness the witness witness stand. The declaration conduit for the out-of-court as the mere serves hand, is, by other devices such as the the other tested on trial itself. All too fre- and cross-examination oath of the witness on the stand allow our distrust quently, we of the out-of-court declara- into a mistrust be transmuted tion, only frequently subconscious transfer serves and this analysis.” to blur Judge Niemeyer As said

Id. at 643 n. 415 A.2d at 595 n. 2. of corroboration therefore must be Bumpass, “the level add little to test the that cross-examination would sufficient hearsay’s reliability.” Bumpass, 60 F.3d at 1102. Court, Cathell, has out the circum- writing for the set

Judge reliability justify an assurance of provide stances surely I admissibility agree. of the statements. Gatton unavailable, penal inter- and his statements were considering credibility Johnson’s judge trial erred est. The 5-104. ordinary considerations under Rule beyond the witness sufficiently corroborated establish statements were The permitted been trustworthiness. The should have their testimony respect with to Gatton’s state- to hear Johnson’s ments. Privilege Amendment

II. Invocation of Fifth majority concurring opinions agree I with both the judge permit of the trial it is within the discretion jury to invoke Fifth to call a witness before the defendant join I privilege against self-incrimination. Amendment that, understanding “single opinion of the Court with the Tague, Amendment: see Peter W. crimes,” culprit Fifth to the Guilty Defendant, Impediment an Aid to the If Innocent One, (1989), a defendant Geo. L.J. law, barred, calling as a matter of from witness before the

579 Fifth jury for the witness to exercise his or her Amendment attempting jury and from to convince the that the assertion of the Fifth Amendment inferen- witness’s his or claim of tially supports her innocence. Court, Cathell, for a

Judge writing the has crafted workable general in criminal cases that exception and limited rule may a witness not invoke the Fifth Amendment before the however, inform jury. require, I would that the defense defense, i.e., prosecution theory and the court of the it,” to call “some other dude did and of the intention suspect as a witness.7 I would also caution trial alternate controlling judges, the exercise their discretion trial, practice conduct of the to make sure that not permitted pose and that will not abused counsel fact- specific questions jury to the witness the sole before with purpose creating prejudicial inferences from the assertion privilege. should permitted, Counsel not be counsel case, long string wished to do in the instant a of fact- ask that, specific questions designed jury but suggest privilege, questions the answer to the would have been “yes.” beyond question

It that it is error under the Fifth Constitution, see v. Amendment to the United States Griffin California, (1965), 380 U.S. 85 S.Ct. 14 L.Ed.2d 106 as well as under 22 of Maryland Article Declaration of Rights (1957, Maryland Repl.Vol., Code Supp.) Article, § 9-107 see Proceedings of the Courts and Judicial v. Smith 348, 353-54, (2001), 367 Md. 787 A.2d to instruct may a a criminal it case draw an of guilt inference from a to testify. Mary- failure defendant’s however, recognizes, states, land many as do other invocation of privilege by the Fifth party Amendment adverse inference. See Baxter v. may civil case in an result Palmigiano, 425 U.S. 1551, 1557, 96 S.Ct. 47 L.Ed.2d surprise 7. It is clear in the instant case that no there was to the State theory Gray that the of the defense was that Gatlon killed Bonnie that the defense intended to call Gatton as a witness. Robinson, (1976); 615 A.2d 328 Md. Robinson (1992).8 case, difference —we are significant there is a In this defendant, witness, called to but rather talking about the testify at the trial the defendant. bar many jurisdictions properly points out

The dissent per criminal case any drawing of an adverse inference Tague, for this view. See are several reasons se. There relevancy evidentiary concerns of 13. In addition to supra, at be- possibility to the of collusion prejudice, courts cite witness, symmetry the between the defendant the tween defendant,9 and a concern for the interest and the prosecution privilege publicly.10 assert the having in not of the witness courts, drama, high causing it According to those is id. See Fifth Amend- a witness “takes the prejudice, unfair when ment.” might addition, many why a witness there are reasons than an Fifth Amendment other protection of the

invoke the Robinson, 507, that, A.2d in Robinson v. recognize 328 Md. 615 I 8. 308, 317, Palmigiano, (1992), and Baxter v. U.S. 96 S.Ct. 425 1190 1551, 1557, (1976), dealing party with a 810 the courts were 47 L.Ed.2d merely a witness the case. and not argument-that State cannot accept symmetry because the 9. I do not the inference, precluded from should be benefit from the defendant immunity, power grant which is not doing The State has the use so. (1957, Repl.Vol., See Maryland 1998 Code available to the defendant. Proceedings Article Supp.) § the Courts and Judicial 2001 9-123 of immunity compelled to (authorizing grant to a witness the State to use Jury). a The dissent testify prosecution or before Grand in a criminal simply wrong stating a witness invokes his constitution- "[w]hen silent, longer available to the State or right remain he or she is no al op. Diss. at 601. the defense." having in not to invoke The overstates the witness's interest 10. dissent may protection be entitled to privilege and the the witness and, Although may embarrassing op. it be See enjoy. diss. at 596-98. circumstances, witness assert harmful to the even under some (at jury), public the defendant's trial before Fifth Amendment protection to remain silent and to witness' is limited to against subsequent prosecution him or her protection use an The Amendment: Tague, future trial. See any Peter W. Fifth If One, Guilty Defendant, Impediment to the Innocent 78 Geo. Aid to the 1, (1989). L.J. 51

581 A need not charged. for crime witness guilt admission privilege. We in order to invoke the guilty any offense be Fifth Amendment may invoke the have held that witness if has reason- “the witness privilege against self-incrimination Choi danger from a direct answer.” apprehend able cause (1989) 536, 1108, State, 529, (quoting A.2d 1111 v. 316 Md. 818, States, 479, 486, 814, v. 341 U.S. S.Ct. United Hoffman (1951)). properly privilege is invoked 95 L.Ed. him “will tend to incriminate whenever the witness’s answers fines, v. penalties, or forfeitures.” Smith subject him to (1978) 187, 539, 194, (quoting 283 Md. 388 A.2d 542-43 Hitchcock, v. U.S. S.Ct. Counselman (1892)). issues, however, can dealt 35 L.Ed. 1110 These Also, witness, invok- through jury instructions. when with ing privilege, is not available for cross-examination. Of course, implications preventing the there are constitutional invoked drawing privilege of such an inference when the Alabama, Douglas the defendant in a criminal case. See (1965). Although 13 L.Ed.2d 934 380 U.S. S.Ct. from ever good precluding there are reasons witness I jury, Fifth find invoking the Amendment before good distinguishing is no basis for civil there between in who and criminal cases which it is not the defendant cases invoking privilege. is

If a Fifth permits the court witness invoke the Amend- jury, party ment either should be entitled to before indicating instruction that the invocation of the not, itself, that is in and of evidence self-incrimination course, is of a should be guilty the witness crime. Of counsel argue any by permitted appropriate inferences raised evidence at the trial. and HARRELL authorized

Judges W1LNER have me they join concurring opinion. that in this state WILNER, in Judge, concurring, which RAKER and HARRELL, JJ., join. opinion separately

I in but to address join the Court’s write one, issue, important an which I think is an that is not It to do with the trial court’s opinion. in that has addressed witness, knows require a defense whom the court discretion to testify, that right a valid not to to exercise intends exercise I am satisfied that the court has some right jury. before the first, believe, however, that, I regard. in that discretion and, very using procedure, court must be careful before second, allow to force the witness to if it does the defense jury, may court right or her front of the exercise his scope limit the and extent the examination. setting for the by the defendant this is

What is desired very an inference from the witness’s invocation jury to draw from self- right compelled to be free his or her Constitutional fact, is, guilty of whatever incrimination the witness inquiry. keep the court must subject crime is the What mind, however, that, may not although itself be it, basis is for unless a reasonable established invoked necessarily mean that the witness refusal to answer does that, an offense or if he or she did commit has committed the offense, It exculpate may just would the defendant. that, providing the witness could be self- by answering, well be offense, having nothing of some other incriminating evidence defendant, charged to or to do with the crime whatever way that is related in some to the crime some lesser offense but that would not to excul- charged to the defendant serve accessory conspirator, or a pate being the defendant — example. any problem second lies the extent examination 5-403, Maryland

that is Rule which allows court allowed. case, evidence, if evidence in a criminal exclude even relevant out- substantially value of that evidence is probative danger prejudice, of unfair confusion of the weighed by the issues, misleading jury, or or considerations of undue time, presentation of cumulative delay, waste of needless evidence, proper goal may applicable. The defendant’s just questions basic propounding achievable few court, view, my required in is not to allow a the witness. The that, effect, expedition by fishing wholesale defense counsel puts through the on trial unanswerable accusations. witness case, may easily imagine, being in this Mr. Gatton sub- One hundreds, dozens, questions, being required and jected to or and over and right to invoke his of silence over Constitutional over. instances, most, best course of many perhaps the would have the the and

action be to witness invoke unwillingness testify, clear his or her to outside the make jury and for court then to inform the presence jury, the the (1) (2) testify, that was called to the witness witness (3) right questions, his or not to invoked her answer might may compelled give testimony witness not be to be (4) self-incriminating, jury and it is for that reason that the Except will not from hearing be the witness. those situa- particularly tions where it is for important the witness called to stand jury where, example, before the — willing testify witness is not some matters but procedure only others —this informs the true of affairs gives prospect state but the defendant the full danger prejudice desired without the of unfair either inference to the witness or to the State. opinion precluding

I do not read the Court’s the exercise of the court’s discretion these manners.

Judges RAKER and HARRELL have authorized me to in this they join concurring opinion. state BATTAGLIA, Judge, dissenting. question, majority opposite

Without and I are on ends of spectrum majority in this case. Where the believes the reliability trial court has no discretion to an in- consider the against penal court witness to an out-of-court statement inter- est, consider, I may properly believe the court consid- did er, in-court credibility concluding witness’s untrustworthy. majority statement Where be- itself that a determining lieves trial court should have discretion in may stand for whether witness be called the sole silent, purpose invoking his or her I remain believe a court has no knowingly discretion should never

584 purpose used for the sole intentionally permit a witness to be My jury. before a his or to remain silent invoking of her and easily bridged, majority are not with the differences therefore, respectfully I dissent. of Tri- Interest —Discretion the Against

I. Penal Statements *. al Court majority’s opinion regard- portion of the respect With to the interest, there exist three against penal ing the statements foremost, I do not believe my dissent. First grounds for proper required defer- majority has shown the that the in this Sec- evidentiary ruling case. to the trial court’s ence view, assessing ond, majority’s I believe that contrary to the interest, penal of trustworthiness the declaration ais speaker in-court of the statement credibility of the relia- of the statement’s factor inherent the determination Third, agree and I that the Con- majority bility. while principles provide frontation and other related Clause for guarantees of trustworthiness for the additional bases accused, I inculpate the believe which statements language of Rule 5- disregards the fact that majority 804(b)(3), itself, requisite for additional provides the basis exculpate which of trustworthiness statements guarantees accused. Trial to the Court’s A. The Standard Review—Deference Evidentiary Rulings judge, trial within the domain of the

Evidentiary rulings are found. unless clear error is See and should not be disturbed State, 391, 404, A.2d 439 Md. 697 Merzbacher v. admissibility of is within the (1997)(stating that the evidence court”). trial and sound discretion “considerable review, then, particularly when standard of deferential involving propriety appellate court considers issues admitting, at a trial. Void v. admitting, or not evidence See (1992) State, 386, 393, (affirming 601 A.2d 325 Md. conduct judges that trial afforded “broad discretion are reception evidence”)(quoting of trials in such as the areas (1985)). 126, 133, McCray v. 305 Md. 501 A.2d Overturning evidentiary rulings simply cannot be a matter disagreement judge with the trial in the outcome at which unequivocally trial court he or she arrived. The must have by basing rulings findings its its on factual abused discretion facially legal postu- clearly which were erroneous incorrect States, 594, 604, lates. See Williamson United 512 U.S. (1994)(stating 129 L.Ed.2d that the S.Ct. trial court’s on should determination whether statement against penal hearsay admitted under the statement interest Booze, fact-intensive); 64, 68, is v. 334 Md. 637 exception State 1214, (1994)(explaining judge’s rulings 1216 that a trial A.2d trials, regarding including the conduct of that which consti- only testimony “may tutes rebuttal be reversed when it consti- discretion, i.e., tutes an abuse of it has been shown to be both ‘manifestly substantially injurious’ ”)(quoting v. Mayson State, (1965)). 283, 289, 599, According- 238 Md. 208 A.2d 602 review, ly, appellate generally in our we extend the trial court great determining admissibility deference of evidence only and will if a has reverse clear abuse of discretion been State, 104, 121, 741, shown. Robinson v. 348 Md. 702 A.2d 749 (1997) (referring evidentiary regarding to determinations rele- is, vancy). part, pursuant It in accordance with and to the required appellate standard of review deferential courts I majority’s today. that differ from the decision 5-802, Maryland hearsay generally Pursuant Rule is qualifies inadmissible at trial unless the recog- statement as a exception hearsay Maryland nized 5- rule. Rule 804(b)(3) recognizes against penal declarations interest as a declarant, Gatton, hearsay exception if the in this case is unavailable and the trial court finds the statement to be reasonably trustworthy.1 Specific hearsay exception to the case, employed judge duty this the trial has evaluate 5-804(b)(3) Maryland provides: 1. Rule (b) Hearsay exceptions. following are not excluded hearsay rule if the declarant is unavailable as a witness: 586 statement; differently, stated

the trustworthiness sufficiently admissibility is reliable whether the evidence trial sound discretion of the within the factual determination 3, 19-20, 955, 526 A.2d Standifur, v. 310 Md. judge. See State 441, 453, State, (1987); v. 324 Md. 597 A.2d see also Powell 963 (1991). 479, Special Appeals in the Our brethren Court considering that when the declaration correctly have stated rule, hearsay trial penal exception interest to the against concerning whether must make a factual determination courts “sufficiently for ad- trustworthy or reliable the statement State, Md.App. v. missibility.” See Wilkerson (2001); Md.App. see also Jacobs 776 A.2d (1980)(stating dealing A.2d that “when hearsay against against rule declaration [the with the (3) against interest. A statement which was at the time Statement contrary pecuniary proprie- making of its so declarant's interest, subject tary the declarant to civil or criminal so tended to liability, by the tended to render invalid a claim declarant or so another, posi- person in the declarant's that a reasonable person believed tion would not have made the statement unless tending expose A statement the declarant it to be true. liability exculpate and offered to the accused is not admis- criminal clearly corroborating indicate the trust- unless circumstances sible the worthiness of statement. firmly exception hearsay penal The interest to the rule is not rooted ''[Wjhere hearsay exception are admitted under an one. statements rooted, firmly they presumptively then are which is not considered purposes and unreliable and inadmissible for Confrontation Clause excluded, showing particularized guaran absent a must be least State, 547, 559, v. 333 Md. 636 A.2d tees of trustworthiness.” Simmons 463, 448, 457, State, Chapman (1994)(quoting v. 331 Md. 628 A.2d 469 676, omitted)). (1993)(internal quotations acknowledged We 681 hearsay Supreme specified exceptions that several classic the Court has however, “firmly category; fall within the rooted” a declaration State, 448, Chapman penal one of them. See v. 331 Md. interest is not 3, (1993). hearsay exceptions fall n. 628 A.2d 676 within 457 declarations, dying “firmly category prior include: the rooted” testimo records, records, utterances, public ny, excited statements business treatment, seeking co-conspirator Id. made in medical and statements. hearsay question “firmly hearsay Where the falls within a rooted” reliability required....” exception independent inquiry is "no into 171, 183, 2775, 2782, States, Bourjaily v. United 483 U.S. 107 S.Ct. 97 144, Roberts, 56, (1987)(discussing 157 Ohio v. 448 U.S. 100 L.Ed.2d 2531, (1980)). 597 S.Ct. 65 L.Ed.2d

587 admissibility question ... is a exception[ penal interest] ] judge”). trial exclusively to discretion of the addressed 422, 226 Md. 174 Similarly, Brady v. decades earlier 83, 1194, (1961), 83 10 L.Ed.2d 2d 167 373 U.S. S.Ct. aff'd, A. stated, Bruñe, (1963), speaking for this Court Judge 215 Chief party of a third what a confession or admission extent “[t]o is a and the indicia of trustworthiness free of collusion bears first think should be entrusted question which we judge.”2 trial Id. at instance to the sound discretion of the hereinafter, 429, I 174 A.2d at 171. As discussed believe of, in his discussion judge thorough thoughtful trial was on, of an rulings statements. the absence Gatton’s discretion, I apparent unwilling abuse of am reverse evidentiary rulings. trial court’s of a Assessing Reliability Speaker

B. of the In-Court Against Exculpates Declaration Penal Interest Which Accused

In Standifur, supra, we articulated a test which trial courts could determine whether to admit statements under the Supreme appellate 2. The United States Court review of lower discussed regarding hearsay court's determinations whether a statement had particularized guarantees Lilly Virginia, v. trustworthiness 116, 1887, (1999), U.S. S.Ct. 144 L.Ed.2d 117 which involved hearsay prosecution guilt evidence offered to establish the of an (the defendant) alleged accomplice of the declarant. The defendant argued rights pursuant that his were Confrontation Clause hearsay alleged accomplice violated when the statement of his 1892, admitted. See 527 U.S. at 119 S.Ct. at at 124. L.Ed.2d claims, respect appellate Supreme With stated, to the review of these Court fact-intensive, question “as with other mixed constitutional of, independent necessary law ... review ... ... to maintain control clarify, legal principles governing and to the factual circumstances necessary satisfy Rights." protections Bill Id. at (emphasis added)(quoting 119 S.Ct. at at 134 L.Ed.2d Orne- States, 1657, 1662, las United 517 U.S. 116 S.Ct. (1996))(internal omitted). quotations pres- L.Ed.2d The case Court, however, ently question before this is not the of constitu- "mixed Lilly Supreme referring tional law” to which the Court was Virginia. contrary, On the the determination the lower court made in application evidentiary this case was the fact-intensive rules tradi- tionally province judge. left to the trial hearsay exception. Once the against penal statement interest established,3 court must: unavailability of declarant is light content of the statement carefully consider the surrounding circumstances of all known and relevant con- and all relevant information making of the statement declarant, and determine whether the statement cerning the penal and wheth- against the declarant’s interest fact declarant a reasonable the situation person er against penal that it was interest perceived would have at the time it was made. added). court, trial (emphasis A.2d at 962 The

Id. at i.e., statements, case, “I in this that Gatton’s out-of-court ruled you “I’ll and that take care [Bonnie]” took care of her Bonnie,” were, in declarations [Evelyn] fact, like I took care of they may in that involve substantial against interest penal in a trial liability probative criminal or have value exposure to believe, trial court did not howev against the declarant. The er, would person in the declarant’s shoes reasonable against penal interest. See have believed the statement be (stating Md. at 526 A.2d at 960 Standifur, “[t]he person is that a important more criterion reasonable perceived statement declarant would have situation added). it”)(emphasis at time made disserving he statements, court that Gatton’s which were made reasoned use,'4 drug was in altered states due to alcohol while he designed to bolster likely to have been “bravado were more rape of against Evelyn keep quiet about Gatton’s his threat” Evelyn days Concluding that Gatton’s state few earlier. state, made in an intoxicated Gatton ments were self-incrimination is suffi- 3. Gatton’s invocation Simmons, unavailability. 333 Md. at 636 A.2d at cient to establish 469. noted, correctly judge may upon called 4. As the trial court “a trial person whether a reasonable who is under the influence [of] determine drugs disserving nature alcohol or would have understood the Standifur, particular Md. at 526 A.2d at 959-60. statement.” made, that, Evelyn were Gatton was testified time the statements “high and drunk.”

589 benefit, would result some anticipated that his statement himself, silence, harm to the court i.e., rather than Evelyn’s person in circumstances that a reasonable Gatton’s determined against was perceived not have that the statement could at time it was made.5 penal interest the inquiry a trial court’s pronounced, As Court the Standifur considering statement end there. After whether the does not against penal a facially objectively both and declaration interest, court must also consider: circumstances, present any other

whether there are facts falsify part on the of including indicating those motive declarant, that so cut relia- against presumption of against interest that bility normally attending a declaration the statements should be admitted. added). 17, (emphasis

Id. at 526 A.2d at 962 These consider- 5-804(b)(3) Maryland conform to ations the last line Rule admissibility particular limits which declarations exculpate A which the defen- interest. declaration tends liability expose dant and the declarant to criminal “is not clearly corroborating admissible unless circumstances indicate 5-804(b)(3). the trustworthiness the statement.” Md. Rule Thus, exculpate is that which the default rule statements defendant, another, inculpate are inadmissible on it with proponent burden is “to establish that is cloaked jurisdictions support 5. court cited from The trial case law other its 909, Cooper, Kan.App.2d v. 20 conclusions. See State (1995) ("... 892 P.2d 914 good if a declarant has no reason to believe that the harm, bring likely assertion will or believes the is more assertion harm, excepted cause benefit rather than such will assertion not 294, Pecoraro, rule.''); People hearsay v. from the 341, 175 Ill.2d Ill.Dec. (1997)(holding 677 N.E.2d that an admission to a murder coupled jealousy” apparently when with a “threat bom of would not be admissible, "may simply represent designed as it bravado to bolster the threat”). mean, alludes, petitioner This does not as the that one must have a clear-headed desire to disclose the truth to the authorities to qualify against penal contraiy, as a statement interest. On the surrounding simply courts above note that when circumstances declaration, strongly statement indicate ulterior motives for the courts admitting hearsay should hesitate before such a statement under a exception. ... that there must be reliability means [which] indicia of of trustworthiness.” guarantees showing particularized Simmons, (quoting 636 A.2d at 469 Ohio 333 Md. Roberts, 56, 66, 65 L.Ed.2d S.Ct. U.S. omitted)). (1980)(intemal quotations not, today, presented with issue have until been We of a trial court’s exclusion of concerning propriety largely on the “trustworthi- against interest based declaration 5-804(b)(3). have, however, We requirements Rule ness” employ factors which some courts determin- discussed the sufficiently cor- interest ing whether declaration trustworthy. Matusky, In State v. roborated to be deemed (1996), factors used 682 A.2d 694 we cited the 343 Md. Appeals: Fifth Circuit Court the (1) any apparent for the out-of- there is motive whether (2) matter, misrepresent general the the court declarant to (3) people whether other heard the speaker, character of the (4) statement, the statement was made out-of-court whether [(6)] (5) timing of the declaration and spontaneously, and ... relationship speaker between the [declarant]. (quoting n. at 701 n. 7 States v. Id. at 482 682 A.2d United (5th Cir.1978)). Alvarez, n. As 584 F.2d the Court noted, correctly performed the trial court Special Appeals analysis of out-of-court statement factor-by-factor Gatton’s to factors pursuant its trustworthiness order to determine Md.App. Matusky. Gray See we furnished (2001). 460, 476-77, trial court conclud 769 A.2d The (1) to misrepresent had a motive to the matter ed that: Gatton to silence Evelyn Evelyn’s in that Gatton wanted induce allegedly raped Evelyn; fact that had concerning the Gatton thus, actually regardless of whether Gatton had “taken care (2) Bonnie,” effectively Evelyn; threaten Gatton wanted Evelyn’s questionable6 was was admitted character —she factor, primary respect 6. With to the second issue of contention case, analysis provided present I have the trial court’s entire general speaker (Evelyn) majority’s character when I discuss the testimony “self-contradictory, gave that was crack user and confused, inexact, incredible;” disclose Gat- she failed to and nearly years until two after against interest ton’s declaration “disclosure,” made; prior to her allegedly the statements were Gatton, having any knowledge about Evelyn repeatedly denied may in which she only forward under circumstances and came (3) statements; to fabricate Gatton’s highly be motivated (4) by Evelyn; the statements were only statement was heard (5) timing of when Evelyn’s testimony about the spontaneous; (6) unclear; and made was Gatton the statements were confidantes, rath- Evelyn’s relationship was not one of mutual er, Evelyn only to induce speak Gatton’s motivation analyzing balancing these thoroughly silence. After her factors, greater the court found these circumstances be statements, than rather indicia of the untrustworthiness reliability. Concluding that the statements supportive of its untrustworthy, trial court ruled the state- inherently were inadmissible. ment judice argues, and the petitioner in the case sub

The findings apparently agrees, that the factual made majority clearly six factors were respect trial court with these predominantly on the fact that petitioner relies erroneous. Evelyn in credibility trial court its considered untrustworthy and the declaration was determination judge for a trial improper asserts that such a consideration is court, trial province jury. and should be left to the case, factors, this several of which was the considered one trial court conclud- speaker. doing, character of the so about that it “had serious doubts whether the statement ed made, its against in fact a concern that also cuts admissi- was 7 bility.” great- credibility ill-founded about the inherent assessment concerns accompanying er detail See note 7 and text. infra. infra rulings regarding its on the 7. In the trial court's written memorandum statements, admissibility hearsay provided the court Gatton's "general speak- analysis character of the detailed and discussion Alvarez, er” under the second factor as follows: general speaker” to interprets "the character of the The Court among ... the circum mean an evaluation of tire in-court witness surrounding are those the witness’ disclo stances to be considered 1152, (Del. Demby v. 695 A.2d of the statement. sure 1997). testimony Her Evelyn an admitted' crack cocaine user. Johnson is confused, inexact, Despite self-contradictory, and incredible. was carefully examination, placed which events were direct structured Gray’s disap- when Ms. Johnson heard about Bonnie in reference to death, shaky chronology already com- pearance and Johnson's Ms. Bryan visits pletely apart fell under cross-examination. Gatton’s nearly every day period handful over a of months to a dwindled from period. from a within a week His "confession” moved of times two days brought home to as few after he last Bonnie to Johnson Becky Bonnie much as a month later. The number of visits and/or fluctuated, made as did the details of each visit. telling example, on direct particularly In one Ms. Johnson testified came, brought Becky Bonnie time Bonnie she with her. that the last argument (apparently Becky in the Mr. had their with still and Gatton room). Becky, and Ms. Mr. Gatton out with Bonnie walked Becky by her watched Mr. Gatton take the hand and buckle Johnson cross-examination, however, admitted into her seat. On Ms. Johnson leave, and had never watched Mr. Gatton or Bonnie that she had except for the one time Bonnie drove never seen Bonnie's car store, Becky, everyone liquor buckling in of which she to a and the- detail, just assumption. had described in was California, jurisdiction, one has held The Court notes that at least credibility proper "not a consider- that the of the in-court witness is People judge, jury. for the trial but should be left to ation” (1993). Cal.Rptr.2d Cudjo, 863 P.2d 6 Cal.4th however, falsity recognizes, if the of a witness’ Even California " testimony apparent resorting inferences or deduc- 'without ” tions,' bring testimony will not be sufficient to that witness’ against penal jury. Id. at Such is the declaration interest to the 649. here. The has serious doubts about whether statement case Court made, admissibility. that also cuts its fact concern (5th Cir.1976). Bagley, F.2d United States v. troubling timing all and the circumstances sur- Most are the See, e.g. rounding initial the statement. Ms. Johnson’s disclosure of (witness’ Demby, of the declarant's 695 A.2d at 1158 disclosure circumstances). Nearly trustworthy two statement found under the years elapsed anyone before Ms. Johnson told about Mr. Gatton’s twenty-year for car statement. Mr. Gatton’s conviction and sentence Johnson, telling anyone jacking Mr. did not result in Ms. Johnson else, investigators Two visits defense had not about statement. statement; fact, knowing produced Ms. Johnson denied Bonnie visit, Becky Gray altogether. [according to Ms. On the third her, Johnson, investigator move a defense would interview she would him, down], investigator escape and the would track her Ms. investigators Becky, knew Bonnie and but Johnson told the she say anything them "didn’t want to because I was scared.” She told only they protect moved she would talk if would her. Ms. Johnson

593 credibility of of a witness is Generally speaking, the issue of fact. the issue province within the of the finder When issue penal hearsay of the statement is the trustworthiness consider, interest, however, of judge may the trial one factors, of as well. See credibility the witness several (5th 162, Cir.1976); see Bagley, States v. 537 F.2d 167 United (9th 687, Satterfield, 572 F.2d also United States Cir.1978), denied, 128, 58 L.Ed.2d cert. 439 U.S. S.Ct. justifications for (1978)(discussing in dicta some of the considering determin the trustworthiness witness when statement). hearsay is not to ing whether the admit the This permitted testimony solely is on say that the court exclude witness; credibility credibility lack of of of the basis of the that it speaker only should be a consideration to the extent the trustworthiness the statement i.e. itself influences statement was made or the actual substance whether the It statement is in the statement itself. is the itself contention; thus, a court affirm trust must the statement’s prior allowing worthiness to hear the declaration. attempting When to determine the actual content made, it hearsay declaration or whether a statement was necessary both natural and for the trial court to consider the heard, veracity person purporting and now have to, testifying questionable inherently unreliable state Illinois, Lee v. ment. See U.S. S.Ct. (1986)(stating hearsay 90 L.Ed.2d evidence firmly that does not fall within hearsay exceptions rooted again, they people and this time there were some who “said would stuff,” break in and kill me and all this kind of she called Ben so Guiffre, investigators. one of the defense While Ms. Johnson denied telling pick up Mr. if Guiffre to come her he wanted to hear the rest story, she admit she had him did “called several times and told pieces story please him how I had me.” come and talk to Ultimately, Mr. Guiffre arrived with a U-haul and moved Ms. Johnson apartment George's County, into an in Prince Johnson where Ms. stayed period plenty rent-free for a of time. Ms. Johnson had investigators they motive to tell the defense what she believed wanted hear, long and the fact that she waited so to tell and then anyone, denials, only repeated after casts serious doubt on the trustworthiness testimony. of her 594

' “par- unreliable and must be excluded absent presumptively trustworthiness”)(emphasis of add- guarantees ticularized Roberts, 66, 2539, at 100 at v. 448 U.S. S.Ct. ed)(quoting Ohio 608). Specials Appeals proper- of 65 L.Ed.2d at As the Court noted, dispute in ... in which is a ly “especially cases there only made at all and not the statement was whether whether, made, in if it affords a basis for the matter asserted it, credibility of the in-court common sense dictates that the ostensibly out-of-court declarant made witness to whom the necessary Gray, a consideration.” See 137 the statement is 479, at 203.8 a trial court consid- Md.App. at 769 A.2d When made, actually statement was a proffered ers whether the apparent contradictions in ignore court should not be forced to surrounding testimony or the circumstances the witness’s declaration, considerations which witness’s disclosure of the in “general speaker” fall character of the factor under the factors, favorably Alvarez noted this Court Alvarez. The considerations, adequately outline those as re- Matusky, 5-804(b)(3) hearsay statements offered to quired by Rule should, accused, judge which a trial and did exculpate the case, determining this make in declaration’s trustworthi- ness.9 Appeals correctly acknowledged Special that with re

8. The Court of general speaker spect considering character of the in a court's statement, hearsay of the trustworthiness of the there determination 478-79, Gray, Md.App. split in the circuits. See 137 exists a federal 202-03; (1st Seeley, A.2d at see also United States v. 892 F.2d 1989)(prohibiting Cir. a court’s assessment of the in-court witness's (2nd credibility); Katsougrakis, United States v. 715 F.2d court’s of the in-court witness’s Cir.1983)(prohibiting assessment Alvarez, credibility); (permitting a 584 F.2d at 699-701 trial court credibility witness’s as one of several factors in a assess the in-court determination); Rasmussen, States v. 790 F.2d trustworthiness United (8th Cir.1986)(permitting a trial court to assess the in-court credibility factors in a witness’s as one several trustworthiness determination). "[tjhere nothing Standifur, any majority or in 9. The asserts that aware, jury specifically permits our cases of which we are trial a trial to make a factual assessment of the trustworthiness of the court exculpates in-court relator of the out-of-court declaration that a defen Matusky Maj. disagree; Op. dant.” at 544. I while the Court couldn't jury perform from impede an does not Such evaluation stand, once takes the ing credibility its assessment the witness declaration, admitted, if has been rather it ensures trustworthy by a trial court exercise sufficiently deemed Knox, 124 it. United States the full discretion afforded See (10th Cir.1997)(stating “[a]ppellate review F.3d con evidentiary ruling particularly deferential where evidence”). alleged hearsay admission of When cerns the requires a “credibility” hearsay of a statement question ruling and a hearing presence outside the may result in a admissibility, question trial court on its such a a threshold matter as “credibility” two-fold determination: as on trustworthiness admissibility, judge the trial will rule the statement, may, part parcel and of the of the which as determination, general involve considerations the character will, speaker, jury again, weigh credibility and the testimony speaker, of the should the statement be Special Appeals determined admissible. As the Court of correctly points out: in ruling

It of the trial court on the often the role findings. ruling admissibility of evidence to make factual evidence, suppress example, on motions to for the trial court evidence, including credibility findings, takes makes factual assessments, applies findings the law to the of fact. The trial court’s role as fact-finder that context does not Indeed, province jury. invade mentioned earlier, inquiry that Supreme Court has described the a in deciding qualifies trial court makes whether a statement against penal as one interest as “fact-intensive.” William- son, 129 L.Ed.2d U.S. S.Ct. (1994). 476, 486 Md.App. evidentiary at 769 A.2d at 203. The

Gray, respect trial court admissi- ruling entrusted with bility against penal prohibit of a declaration does not interest conducting credibility from its own assessment should predicate adopt it the factual for factors because lacked Alvarez adoption, acknowledge approvingly.

such the Court did these factors of trust- requisite requirements meet the the statement itself worthiness. 5-804(b)(3) Requires Additional Guarantees

C. Rule Ac- Exculpate Trustworthiness Statements Which cused majority correctly acknowledges, Matusky opin-

As against interest of ion notes that “when declaration issue, requires the confrontation clause addi- defendant is against reliability tional before such declarations assurances interest should be admitted.” See maj. op. (emphasis at 538. omitted) principle. with this The Confronta- disagree I do not does, indeed, require courts to the reliabili- tion Clause ensure inculpatory which are ty and trustworthiness of statements but another unavailable declar- against the defendant made 7,n. A.2d at 700 n. 7. Matusky, See ant. 343 Md. at 481 however, preclude, That does not and should not principle, 5-804(b)(3) preclude, holding our from that Rule itself Court reliability the state- requires additional assurances when exculpates the defendant inculpates ment interest provides that such a statement specifically another —the Rule is inadmissible unless corroborating clearly circumstances trustworthiness of the statement. See Md. Rule indicate the 5-804(b)(3). enough by language If is not vivid the intent itself, point Reporter’s of I also to the Note to the Rule that, 5-804(b)(3), Maryland specifically which states Rule Committee] Subcommittee the Rules “[t]he [Evidence] [of that, exception, this that are majority appear juror more like thirteenth than an appellate court. Right Invocation of the to Remain Silent

II. A Witness’s Jury Before a cannot, conscience, join a which good

I in decision effective- right of his use of a witness’s invocation ly condones the guilt create an adverse inference of purposely remain silent to jury. minds of This is a matter the witness against asserts, fall, a trial court’s majority as the under which cannot should, authority. every possi- extent discretionary Courts ble, from inferences right to remain silent adverse protect by taking a witness from the stand guilt preventing of right his or her to remain silent invoking sole of purpose by vigilance affirmation of this jury. before the States, Supreme Boyd Court United United States (1886), 746, in this eloquent 29 L.Ed. 6 S.Ct. U.S. regard: thing in its mildest and may

It be that it is the obnoxious form; illegitimate but and unconstitutional repulsive least footing way, namely, in that practices get their first of approaches slight legal and deviations from modes silent only to the adhering This can be obviated procedure. security person provisions that constitutional for the of rule A and property liberally should be construed. close and deprives efficacy, of half and literal construction them their depreciation right, as if it consisted gradual leads to It courts to duty more in sound than substance. citizen, and rights the constitutional be watchful for encroachments thereon. against any stealthy added). L.Ed. (emphasis Id. at at 752 S.Ct. vigilant protection in our of the constitutional We are be citizens, defendants; just today’s majority not rights of unnecessarily abruptly constitu- opinion both drains the important principle tional to remain silent of the drawn from invocation of this adverse.inferences should right. The Fifth Amendment the United States Constitu- Maryland Rights11 24 of tion and Article Declaration states, 10. The Fifth Amendment to the United States Constitution person compelled any part, that ... shall be criminal ''[n]o relevant U.S. amend. V. case to be witness himself....” Const,

599 system. By right, justice a sacrosanct in our criminal provide encouraging, use of one’s invocation of permitting, if an adverse inference of right to remain silent create performs, Supreme in the Court’s guilt, majority today words, repulsive ... in its mildest and least “the obnoxious 535, 635, L.Ed. at 116 at 6 at 29 Boyd, form....” U.S. S.Ct. 752. in the invocation of protecting Court has been steadfast

Our privilege against against presump incrimination self v. tions that are inherent in such invocation. Smith often 152, State, 348, 351, (2001); A.2d 153 Woodson v. 367 Md. 787 State, 251, 265, 420, (1992); 426 Booth v. 325 Md. 600 A.2d (1986)(El 1098, State, 172, 226-27, 306 Md. 507 A.2d 1126 J., in dridge, concurring part, dissenting part), grant cert. 882, (1986), ed, 269, 479 107 93 L.Ed.2d 246 part, U.S. S.Ct. 2529, vacated, 496, L.Ed.2d 482 107 S.Ct. 96 part, U.S. 668, (1987); Redwine, 662, 252 Md. 250 A.2d 440 Littreal v. 159, 894, (1969); State, 179, A.2d v. 251 Md. 246 Veney 897 948, 1284, (1968), denied, cert. 89 S.Ct. U.S. (1969). practi L.Ed.2d 482 cannot admonish courts and We regarding a purposely creating tioners for adverse inferences silent, yet right defendant’s invocation of his to remain effectively encourage very by allowing wit those inferences but to purpose nesses to take the stand for no other invoke jury. Nor can right to remain silent front of the we (intentionally expect jury distinguish members to between the sought) adverse created a witness’s invocation of inferences inferences, right to remain silent and the adverse which against, caution created a invocation of the we defendant’s right to remain silent.

Granted, witness, may there be occasions where a unbe- counsel, knownst to the or defense decides to invoke his State right procedure to remain silent on the stand. The occurrences, however, handling long such has been estáb- states, Maryland Rights "[t]hat 11. Article 22 of the Declaration of no ought compelled give man to be evidence himself a criminal case.” 261, 265, Richardson, State, 401 A.2d v. 285 Md. lished. See invokes (1979)(stating that when sworn witness should jury, in front of the right to remain silent “determine whether and the trial court should be dismissed good any is in faith or lacks reasonable claim of 164 A.2d 223 Md. basis”)(quoting Midgett (1960)). invoca determining whether witness’s court is justified, silent is tion of to remain his/her presence the witness outside the required question 529; thereby 223 Md. at 164 A.2d jury, Midgett, see any that minimizing possible, to adverse inferences the extent majority’s with agree invocation. I may result from the a procedure determining of for whether proper recitation maj. op. at may right his to silent. See witness invoke remain 550-54. majority’s proper agree

I further with the recitation to determining for whether a witness is entitled considerations utilized, privilege against incrimination. We have invoke occasions, that invo- Supreme on countless Court’s decree the witness has reasonable protected cation should be “where ... a it need apprehend danger cause to from direct answer implications question, only be evident from the asked, a to the setting responsive in which it is that answer why might it cannot question explanation or an of be answered dangerous injurious because disclosure could result.” Hoff- States, 479, 486-87, 814, 818, man v. United 341 U.S. S.Ct. State, 1118, v. Bhagwat L.Ed. 1124. As we articulated (1995), 263, A.2d 244 a to 338 Md. witness entitled privilege against self-incrimination when reason- invoke is invoked privilege able basis for the invocation exists and the v. faith. Id. at 658 A.2d at 248. See also Adkins good (1989); State, 6-7, Vandegrift 316 Md. 557 A.2d 205-06 (1965) (stating 206 A.2d Md. Attorney calls the test is whether the State’s “[t]he jury”). for on the witness the effect the claim court, case, majority agree and I the trial in this The proper procedure employed conducted the correct legal determining standard in whether Gatton had reason- good invoking right faith basis for to remain able and silent.

My departure majority opinion from the stems from the majority’s granting discretionary authority to trial courts sanctity of an area where I believe none should exist.12 The dependent upon to silent is not right remain whether party calling the witness is the defense or the State right of a witness’s invocation of the whether the use i.e., it prejudices acceptable remain silent defendant — inferences from a witness’s invocation of the use the adverse accused, if it right unaccepta- to remain silent benefits the but prejudices if it the accused. 237 Md. at Vandegrift, ble See 308-09, (describing requirements 206 A.2d at 252 right prejudicial error when State witness invokes the silent). only remain Not is this anathema to our roles as guarantors citizenry, of the civil liberties of our State but potential prejudice is far at stake than there more the mere integrity an accused. right the constitutional to remain silent is undermined when trial courts are forced condone encourage or even an adverse from inference the invocation defendant, required, when it benefits a but are often simultaneously, discourage that same adverse inference every each and other valiantly through- time. We have tried history out this Court’s to curb the adverse inferences that naturally right result from one’s invocation of his to remain 333, 10, silent. See Lakeside v. Oregon, 435 U.S. 340 n. 98 1091, 10, (1978) 319, 1095 n. 55 S.Ct. L.Ed.2d 325 (explaining layman’s suggestion that natural first probably “[t]he would be Accordingly, disagree Special Appeals 12. I also with the Court of when "recognize[d] the trial discretion in court to decide the issue based on relevancy probative potential preju- considerations of and value versus whether, Maryland, question upon dicial effect” held that ‘‘in the defendant, request may questioned of a criminal a witness in front of jury reasonably good the when it is known that he will faith privilege by application assert the testimonial must be determined Gray, Md.App. Md Rules 5-401 and 5-403.” 137 A.2d at right evidentiary 225. The invocation of the to remain silent is not Evidence; rather, item that can be wielded under the Rules oí it is a right, evidentiary the constitutional exercise of which should take on no significance. in each instance is a clear confes- privilege

that resort to crime”) 2272, p. § (quoting 8 Wigmore, sion of the Evidence States, v. (J. Ullmann United 1961)); McNaughton rev. (1956) 497, 500, 422, 426, 100 L.Ed. 76 S.Ct. 350 U.S. should be many, even those who (acknowledging “[t]oo wrongdoers. advised, as a shelter for view this better who invoke it are either readily assume those They too claiming privilege”). perjury or commit guilty of a crime fact, right to remain silent exercise of the In it is because the inferences, standard it of adverse carries with overtones often jury not to and others direct the jury instructions this State Mary- See testify. to from the failure make such inferences Jury Instructions, today, 3:17. Yet Pattern land Criminal impermissible on our resolute stance majority devalues silent right remain on an invocation inferences fully to have his defense “a is entitled because defendant See jury.” maj. op. at 550. presented to the defendant, indeed, present her entitled ,however, defense; petitioner’s right I disagree, allow to invoke his court’s refusal to Gatton impeded fact, I do not believe jury. right to remain silent before present purpose a witness for the sole ability mere that the privilege against self-incrimination before invoking defense, why, which is component any jury is an essential that a court should have discretion part, I do not believe Supreme States Court described this matter. The United including: right present defense witnesses, testimony compel and to right to offer the [t]he attendance, ... necessary right present if their prosecution’s the facts as well as the version of defendant’s truth as an may it decide where the lies. Just to the so wit- right prosecution’s to confront the accused has the testimony, challenging their he purpose for the nesses his own witnesses to establish right present has the pro- of due This is a fundamental element defense. of law. cess Texas,

Washington 388 U.S. S.Ct. (1967). analysis A of some of the L.Ed.2d close defense, Supreme as articulated presenting facets of a Court, a who refusing that in to allow witness demonstrates sole silent to take the stand for the right invokes his to remain jury, of presence that invocation in the making of purpose a ability present of the to depriving a court is not a defendant deprived right A to offer defense. defendant cannot be in- properly who testimony of because a witness witnesses testimony. right to remain silent will offer Nor vokes right present to his version of deprived is the defendant facts, a mute witness does as the exclusion of self-declared (witnesses, circumstantial or not alter the other methods evidence) in order to concrete available to the defendant jurors minds of the establish reasonable doubt deprived “someone else did it.” Nor the defendant defense; a right present to his own witnesses to establish that, being pres- to presenting any natural caveat to witness witness, a witness ent the witness must be available. When silent, right invokes his constitutional to he or she is no remain longer available to or the defense. either State majority

The instructs trial courts to determine “whether presented, by any sufficient evidence has been believable trier fact, possible guilt of the witness the defendant wants Fifth cause invoke his Amendment before jury.” Maj. self-contradicting. This Op. at 558. strikes me as majority argues right present that the defendant’s invocation of his defense could be hindered without a witness’s privilege against jury, yet re- self-incrimination before the quires present sup- the defendant to “sufficient evidence” port might a reasonable else have commit- belief someone ted the crime before he or she can call the “silent” witness to ability present the stand. A defendant’s a defense cannot witness, impeded by so the absence the “silent” therefrom, if procure adverse inferences he or she is able to sufficient evidence that someone else committed the crime differently, majority without that “silent” witness. Stated of a believes sufficient evidence warrants the use silent purpose creating witness for the sole an adverse inference because a present defendant’s defense otherwise

604 view, exists, my howev- That sufficient evidence hindered. generation of an er, purposeful permitting confirms of his or her from a witness’s exercise inference adverse silent, largely on notions to remain based right constitutional otherwise present a defense would right that a defendant’s majority completely without merit. Before impeded, is (i.e., the adverse impermissible otherwise permit would silent), right to remain from the exercise of one’s inference needed; evidence yet because sufficient sufficient evidence is clearly could not a defense generated, right present is would not in this case petitioner have been hindered. from had he been any more “evidence” Gatton have obtained jury, except privilege invoke his before the permitted to repeatedly this Court has guilt which adverse inference of warned against. not be right present a defense should

A defendant’s protec diminishing the constitutional expense upheld Furthermore, an adverse inference tions afforded to others. not, right to remain silent from a invocation witness’s to the whether favorable and should be “evidence” never thus, defendant, cannot and a defendant prosecution or to the right or her a witness invoke his claim an to have entitlement v. jury. See Johnson presence in the to remain silent 549, 553, States, 189, 196-97, 87 63 S.Ct. 318 U.S. United (1943) Kenderdine, 20 Pa. 704, (quoting Phelin v. L.Ed. 711 (1853)) (“If 354, privilege by claimed the witness be 363 allowed, privilege at an The claim of the matter is end. submitted to part no of the evidence properly its allowance is legitimately whatever can be jury, and no inferences by witness of his legal from the assertion drawn them 68, F.3d 71 Griffin, States v. 66 right.”); constitutional United “[njeither (5th Cir.1995) (stating that side has the from jury may simply draw any benefit from inferences the alone or privilege assertion of the either the witness’ him”) put (quot conjunction questions with that have been (1st 1206, Johnson, v. 488 F.2d Cir. ing States United (D.C.Cir. States, 1973)); 439 F.2d Bowles United 1970) (en denied, banc), cert. 401 U.S. S.Ct. (“[T]he (1971) any to draw not entitled L.Ed.2d 583 a witness to exercise his from the decision of inferences whether those inferences be favorable constitutional defense.”) or the prosecution to the to allow a recently explained that court’s refusal We impor testify compels witness to consideration of defense a criminal the Sixth protections tant afforded defendant Amendments, of com namely, guarantees Fourteenth process. Redditt v. 337 Md. process and due pulsory (1995). considerations, 655 A.2d These defendants, a court present criminal are not unique to when witness, nor for testimony of a State either denies the criminal noting id. While that a parties in a civil action. See process protections compulsory process and due defendant’s absolute, appropri the acknowledged that “where are not we relatively an is a close excluding accused’s witness ateness call, possible infringement court avoid the trial should offending defense wit rights by permitting the constitutional Redditt, Thus, 635, in at 655 A.2d at 397. testify.” to Id. ness in exclud that circuit court abused its discretion we held the because the witness ing proffered a witness the defense in with Rule 5-615.13 properly sequestered not accordance Id. not sequestration that a violation should

That we held testimony of a ruling prohibit basis for the court’s to the witness, possible infringement of a defendant’s defense defense, in or right present to witnesses his her constitutional similarly that must hold when the basis does not mean we protection of a constitu- ruling court’s was the witness’s appropriateness of the right tional to remain silent. The not, case, “relative- of a witness is this exclusion defense seques- an based on a ly call” that we deemed exclusion close affirmatively If a court rules that tration violation to be. State, witness, has a proffered by the defense or the whether silent, invoking to right basis for her remain reasonable 13. (he trial, 4-321, of Rule At time of Redditt’s Rule the former version 5-615, was in effect. 205-06, Adkins, 6-7, 557 A.2d at 316 Md.

as articulated witness will court determines progeny, and its to if he or she his or her remain silent elect to exercise stand, this a court has no choice but exclude then takes witness. for, a fair trial only to ensure obligated,

A court is defendant, of, but to also rights protect the constitutional of all those protections constitutional monitor and secure the party, litigant, jury process, trial whether involved constitu member, This is not the first time the or witness. impeded could party of a third be said have rights tional taken. We defendant would have liked have action challenges jurors based permit peremptory have refused greater interest gender because of the court’s on race or rights members to be free the constitutional protecting State, v. from discrimination the State. See Gilchrist (1995) 621-22, 876, (stating that “[a]l- 667 A.2d Md. case, than criminal the defendant rather though, the instant racially peremptory strikes in a prosecution exercised manner, discriminatory Supreme Court has held challenges exercised holding applies peremptory Batson’s (citing proceeding”) Georgia in a criminal by the defendant 2353-54, McCollum, 505 U.S. S.Ct. (1992)); see also Jones v. 343 Md. L.Ed.2d 50, 520, (1996); 593, Stanley v. 313 Md. 683 A.2d 524 (1988). 1267, 62-63, as should not 542 A.2d 1273 Just courts only in a that could “willing participant[s] scheme become ...” justice very system foundation of our undermine the selection, jury racial see respect with to discrimination McCollum, 49, 112 2354, 120 at L.Ed.2d at 45 505 U.S. at S.Ct. 440, Alvarado, 324, N.J.Super. v. 221 534 A.2d (quoting State (Law Div.1987)), 442 courts should not become conduits to invocation of permitting adverse inferences be drawn from by .knowingly allow right constitutional to remain silent one’s that ing purpose. a witness to the stand for sole take Notwithstanding my posture against purposeful strict inferences, having a witness assert creation of adverse itself, unavailability, lacks privilege order to demonstrate therefore, fail to would probative value and evidentiary or Dyer, relevancy. People See requirements of meet the (1986) that a witness’s (stating Mich. 390 N.W.2d no substantial produces right to remain silent invocation nature, evidence). cannot, make a fact very its It invoking the act of probable or because consequence more less admis as an cannot be construed right to remain silent one’s that if their claims majority or guilt sion of involvement. followed, by the defense and a witness called is not stance silent front to to remain not allowed invoke (the the defendant jury may believe jurors, then (Gatton) any questions to ask the witness petitioner) chose not Thus, in his defense. out of lack of confidence about the crime of invocation is arguing that the act majority appears to be for the witness’s absence. explaining the reason relevant invocation is relevant Assuming, arguendo, that the witness’s Maryland “evidence,” pursuant it should still be excluded 5-403, permits exclusion of relevant evidence Rule which confuse danger that the evidence would when there exists Md. 5-403. The jury. See Rule the issues mislead wondering why jury would be left majority’s concern by a questioned was not is better addressed the witness issuance, discretion, jury of an instruction to the court’s in its or the the witness is unavailable either the State agree Special Appeals I with that “[f]or defense. the Court the Fifth invoking that the witness is not the same reasons jury, neutralizing in front of the Amendment not jury should not inform the that the witness did instruction testify invoked the Fifth Amendment appear because he 769 A.2d at 227. privilege.” Gray, Md.App. See Thus, given inform neutralizing may instruction presence, developed “that for reasons out their no they side and should draw witness is available either Id. at nonappearance.” inference from the witness’ McCormick, § 121 at 297- (quoting A.2d at 227 Evidence John (1984)). Courts, af- guarantees constitutional protectors citizens, purposeful use of forded to all should condone intentionally invocation of one’s to remain silent majority’s stance guilt. create the inference of Because I must right, such of a citizen’s constitutional permit would use respectfully dissent.

796 A.2d 744 CONTRACTORS, BRAGUNIER MASONRY INC. v. THE AMERICA. CATHOLIC UNIVERSITY OF Term, Sept.

No. 87 2001. Maryland. Appeals Court April 2002. notes under the statements closely suspicion most and viewed with most are scrutinized (A) tending expose the declarant to criminal statements (B) accused; liability exculpate and offered to the and state- of both and another against ments the interest the declarant prove person’s Despite and the acts.” person offered other Committee, majority the clear intention of the Rules the (A) ignore part of concerns. prefers the Committee’s notes, Matusky Standi- and Certainly, majority as the reliability hearsay with courts were concerned fur statements, inculpat- statements, portions hearsay or which This concern should not be the exclusion ed the accused. hearsay regarding valid concern state equally a second and and by exculpate the accused ments offered the defense may Both concerns co-exist. The Rule inculpate another. guarantees for additional of trustwor provides itself the basis exculpates and statement offered the accused thiness when the another, is silent as to state inculpates and while Rule accused, inculpate principles, which other such ments Clause, basis for additional provide the the Confrontation inculpating statements. guarantees of trustworthiness See 1895, 1897, Lilly Virginia, 527 U.S. at 119 S.Ct. (distinguishing 144 L.Ed.2d at the triad of statements (1) voluntary § against penal interest admissions offered (2) declarant-defendant; exculpatory of against the evidence by claiming fered a defendant the declarant committed offense; (3) prosecution offered evidence declarant, guilt alleged accomplice of an establish categories, and third noting that unlike the first the second concerns). category implicate does Confrontation Clause summary, excluding alleged In to conclude that state- incorrect, appellate ment interest was court must findings supporting hold that of fact the trial court’s or trial clearly judge decision were erroneous that the based view, principles my his decision on incorrect of law. neither of circumstances exists. The trial court’s factual these findings appear judicious, upon sound and and the law which review, rulings court its is correct. based Standards authority degree granted which define the shared to a judicial entity, developed prevent are and utilized to which today. majority’s occurred The conclusion that the trial unjustified court abused its discretion is trial court em- —the ployed legal postulates findings correct and its factual cannot clearly said to in an be erroneous —and results over- authority. lack appellate extension of of deference to the legal arguments trial court and lack of merit its makes

Case Details

Case Name: Gray v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 11, 2002

Citation: 796 A.2d 697

Docket Number: 37, Sept. Term, 2001

Court Abbreviation: Md.